Re An Application Under the Criminal Injuries Compensation Act 1983 and James Nicholas Walters [1994] ACTSC 46 (26 May 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983
AND JAMES NICHOLAS WALTERS
No. CIC107 of 1993
Number of pages - 2

COURT

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

HEARING

CANBERRA, 19 May 1994
26:5:1994

Counsel for the Applicant: Mr Z Gabriel

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Respondent: Mr P Clarke

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
Compensation be awarded to the applicant in the sum of $18,599.10.

DECISION

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

2. On 20 October 1993 Adam John Skinner was indicted in this Court on charges of recklessly inflicting grievous bodily harm on the applicant. The principal issue at the trial was whether the accused was correctly identified as being the applicant's assailant.

3. On 21 October 1991 Mr Justice Higgins directed that he be acquitted.

4. The applicant is a 26 year old male, employed as a public servant.

5. On 1 November 1992 he went in the evening to the Octoberfest which was being held at the Natex Centre at Mitchell.

6. Shortly after 1.30am the next morning he was intending to leave the Centre, but saw a group of men attacking another man who was lying on the ground. Several of them were kicking him.

7. He went over and said, "Leave him alone, he's had enough." One of the assailants then ran up to him and punched at him. He tried to defend himself. They struggled, and fell to the ground. The assailant was underneath, with his head behind the applicant's back. The applicant felt himself bitten on the back. His attacker called out for the others to kick the applicant. He was then kicked around the head and face, and attempted to shield himself with his left arm. The kicks continued and he felt his arm break.

8. He managed to struggle to his feet, and back away towards the gate. He was chased, fell to the ground, and was kicked in the face and on his broken left arm, and was bitten again on the back. He seems to have lost consciousness for a short time.

9. He was assisted by two young women back to the pavilion, where an ambulance was called. His shirt and T-shirt were missing. He was taken by ambulance to Woden Valley Hospital, where he was admitted at about 2.00am.

10. The hospital notes confirm that he had two bite marks on his back. X-rays disclosed comminuted fractures of the distal radius and ulna shafts, with forward displacement of the distal fragment. Photographs, Exhibit "B", show the severity of the bite marks, and the many contusions and abrasions to his head and face.

11. He was taken to theatre where, under general anaesthetic, Dr McNicol performed an open reduction and internal fixation of the fractures. Plates were applied to both bones. He was discharged from hospital on 5 November 1992.

12. He was worried that the bites might have infected him, and underwent tests for AIDS and Hepatitis. He suffered the anxiety of waiting for three months before the follow up tests proved negative.

13. He was absent from work on sick leave for nine days.

14. The progress of his recovery has been uneventful. He has been prevented from enjoying his usual sporting activities, and is not yet certain when he will be able to resume them fully.

15. The plates in his arm will probably be removed eventually, but the fracture clinic at the Hospital has not yet made a firm appointment for the operation. He will have to undergo a further operation, probably under general anaesthetic, and involving one or two days in hospital, and a number of days absence from work.

16. He has not lost any actual salary, but has used up sick leave entitlements, and will do so again at the time of the second operation.

17. The assault that he suffered was sustained and terrifying, and the pain would have been intense. He has already undergone one operation, and will need to undergo another. His recovery will have taken over two years, but it may be presumed that it will be relatively complete. He has not sustained any psychological trauma.

18. For his pain and suffering I award $18,000.00. The cost of the ambulance was $231.50. The expenses of bringing the application are $367.60.

19. I award compensation to the applicant of $18,599.10.