Re An Application Under the Criminal Injuries Compensation Act 1983 and Lindy Marie Thompson [1994] ACTSC 63 (22 June 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 and LINDY MARIE THOMPSON
No. CIC31 0f 1989
Number of pages - 5
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation - Prescribed Injury - Assessment - Territory represented by Counsel - Concession that maximum award appropriate - Not consent judgment - Necessity to hear and determine application.

Criminal Injuries Compensation Act 1983, ss. 5, 8, 11, 15 and 34

Supreme Court Rules O.42 r.11.

HEARING

CANBERRA, 9 June 1994
22:6:1994

Counsel for the Applicant: Mr Z Gabriel

Instructing Solicitors: Snedden Hall and Gallop

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

The Court orders that:

Compensation be awarded to the applicant in the sum of $20,342.00.

DECISION

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

2. On 31 January 1990 Kim Hin Teoh was committed to this Court for sentence on a charge that on 20 April 1989 he robbed the applicant whilst armed with a knife.

3. On 26 March 1990 he was sentenced to imprisonment for 5 years and 4 months.

4. The following description of the offence is taken from the Statement of Facts given to the Court on the occasion of his sentencing.

"At about 5.30 pm on Thursday 20 April 1989 Lindy Marie Thompson
was performing teller duties at the Phillip T.A.B. Agency in
Irvine Street, Phillip. Miss Thompson was the only staff member
in the agency. There were two people in the Agency looking at
the results board and placing bets. About this time, the
prisoner, Kim Hin Teoh, entered the premises and looked at the
odds machine display for about five minutes. During this time
the other two persons left the premises.
Within a few minutes of their leaving the prisoner locked the
door behind them and went back to the counter. He then jumped
over the counter and produced a knife with a 4 inch long blade.
The prisoner then approached Miss Thompson and placed the tip of
the knife against her neck, underneath her chin. He demanded
that Miss Thompson open the drawer, which she did. The prisoner
withdrew the knife and removed the notes to the value of three
or four hundred dollars from the drawer and put them into his
coat pocket. He then turned back to face Miss Thompson, put the
knife back against her throat and demanded that she open the
safe. He told Miss Thompson that he was desperate and for her
not to make a move. The prisoner said that he did not want to
hurt Miss Thompson, but that he would if she did not do as he
asked.
Miss Thompson then put the key into the safe which is regulated
by a three minute time delay. While they were standing at the
safe the prisoner kept the knife at Miss Thompson's throat and
kept repeating that he was desperate, and that he would hurt her
if she did anything stupid.
Miss Thompson was frightened for her life and kept asking the
prisoner not to hurt her. He told Miss Thompson to close her
eyes which she did not do for fear that the prisoner would stab
her. Miss Thompson felt her neck bleeding from where the knife
point was, and became very distressed. She touched her neck
with her hand, and saw blood on her hand.
After three minutes, the safe lock clicked and Miss Thompson
opened it. The prisoner then took the knife away from Miss
Thompson's throat and proceeded to remove money in bundles of
notes. He held the knife in his left hand and put the money
into the pockets of his jacket and jeans and down the front of
his jeans.
When the prisoner had removed all the money from the safe he
again put the knife against Miss Thompson's throat and pushed
Miss Thompson towards the kitchen area. He forced Miss Thompson
up against a wall and told her to close her eyes, which she
would not do. The prisoner then took the knife away from Miss
Thompson's throat and placed his hands above and to either side
of her head. He pressed his body against Miss Thompson, placed
his face close to hers and kept telling her to close her eyes.
At this point, Miss Thompson said in her statement to the police
that "I was really scared he was going to kill me". She
pleaded with him not to hurt her and asked him to lock her in
the toilet.
The prisoner then pushed Miss Thompson into a toilet cubicle and
told her to take off all her clothes. Miss Thompson again
pleaded with him to go but the prisoner pushed the knife up
against her throat and told her again to take off her clothes.
Miss Thompson removed all her clothes, including her underwear,
and dropped them onto the floor. The prisoner then folded the
blade of the knife into the handle, picked up Miss Thompson's
clothes and told her not to move. He then left and Miss
Thompson locked the door.
Shortly after Miss Thompson crept back into the kitchen but saw
that the prisoner was still on the premises. He told her to go
back and not to follow him. Miss Thompson returned to the
kitchen and crouched down. She then heard one of the outside
doors close and ran into the office to grab a phone which was
ringing. She spoke to the person on the phone and told them
what had happened. The police were notified and arrived at the
scene shortly after."

5. The applicant is a married woman aged 31 years.

6. She was distressed by the incident, and stayed away from work for two days. When she returned she was unable to continue.

7. She consulted her general practitioner, Dr Middlemiss on 8 May 1989. She complained to him of feeling very shakey, being fearful, unable to be on her own in her office, and having a lot of bad dreams.

8. She had a healing cut 1 cm in length running obliquely across the under surface of her chin. She appeared to him to be anxious and nervous, being flushed and upset as she described the events to him. He gave her a certificate for one month off work.

9. Her employer referred her to Ms Pittman, the coordinating social worker of the Critical Incident Stress Debriefing Team at Royal Canberra Hospital.

10. The applicant presented to Ms Pittman many of the symptoms of acute post traumatic stress disorder, including vivid dreams of violence, sleeplessness, flashbacks, poor concentration, uncontrollable crying, irritability, wanting to withdraw and hide, difficulty making decisions and inability to complete normal everyday tasks. She felt conflicting feelings about counselling, and did not undergo regular treatment.

11. In 1992 she consulted Dr Williams about her pregnancy, and continued to see her. In November 1993, seven months after the birth of her baby, she presented to Dr Williams with feelings of depression, poor self esteem, lack of confidence and lassitude. Dr Williams then found out about the assault. She referred the applicant to Dr Evans, psychiatrist.

12. Dr Evans saw her on 3 occasions before she reported to the applicant's solicitor on 3 May 1994.

13. In her opinion the applicant gave her at least one year's history of a clear major depression, arising in the context of an anxiety disorder, which had been present since the assault. She prescribed antidepressant medication. The applicant had begun to improve by the time of her report. She expected treatment to continue for another 6 months, although her prognosis was not entirely clear.

14. When this application was brought the maximum compensation that could be awarded for a prescribed injury was fixed by S.7 of the Act at $20,000.00.

15. Counsel for the Territory properly conceded that a full compensation for pain and suffering would exceed that amount.

16. The costs of bringing the application were $342.00.

17. I award compensation to the applicant of $20,342.00.

18. In the circumstances of this case it was so clear that an award would be made of the maximum permissible amount, that it was suggested that the application could be "settled", and judgment be entered by consent pursuant to O.42 r.11.

19. That procedure appears at first sight to be attractive, as it would obviate the need for the applicant to incur the expense, and sometimes the distress, associated with the hearing of the application in Court.

20. Upon further consideration I have come to the view that it is not appropriate for applications under this Act to be "settled" in this manner.

21. By S.34 the Territory has a right of appearance in any proceedings on an application for compensation under this Act.

22. But the Territory is not a party in the same way that a defendant is a party to an action, and an application under the Act does not conclude in a judgment, as happens in an action.

23. The Court awards compensation by an order made pursuant to S.5 of the Act. By S.8 compensation shall not be awarded unless the Court is satisfied that the relevant injury is a prescribed injury or the relevant property damage is prescribed property damage.

24. The Court which has jurisdiction to make the award is determined according to S.11. In determining whether to make an award, or the amount, the Court must have regard to the matters set out in S.15.

25. It follows that in every application under this Act the appropriate Court must have evidence before it, first, of the jurisdictional fact referred to in S.11, then of the facts that demonstrate that the injury was a prescribed injury, and lastly of any matters arising under S.15 of which there is any evidence.

26. Counsel for the Territory appear on the application. They make proper submissions to assist the Court in arriving at a just decision. Commonly those submissions include indications, by reference to similar applications or otherwise, of the limits of a proper award. Those submissions are welcome and useful, not only in protecting the fund from which compensation is paid, but in helping the Court achieve some degree of consistency in the awards that are made. In my view it is perfectly proper for Counsel for the Territory to concede, as in this case, that the maximum is the proper amount to be awarded. It would also be proper, in my view, for Counsel for the Territory to inform the Court that some other sum would, in the Territory's submissions, be a proper award. That sum may have been arrived at after discussions with the applicant's legal advisors, and, speaking for myself, I would have no difficulty, and would be positively assisted, if I were advised of that fact.

27. But even when both Counsel have agreed on the amount that they will both submit is a proper award, the Court must still hear the evidence, find it has jurisdiction, and, that the injury was a prescribed injury, and determine a proper award of compensation in accordance with requirement of the legislation in the light of the evidence before it.