Re An Application Under the Criminal Injuries Compensation Act 1983 and Brendan Matthew Cundy [1994] ACTSC 81 (18 August 1994)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983
AND BRENDAN MATTHEW CUNDY
No. CIC75 of 1993
Number of pages - 2

COURT

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

HEARING

CANBERRA, 11 August 1994
18:8:1994

Counsel for the Applicant: Mr K Bradley

Instructing Solicitors: Clayton Utz

Counsel for the Respondent: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

Compensation be awarded to the applicant in the sum of $51,460.00.

DECISION

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

2. On 13 September 1993 Paul Joseph Stanik was indicted in this Court on a charge of intentionally inflicting grievous bodily harm on the applicant on 11 November 1992. He pleaded guilty, and on 15 June 1994 Gallop J sentenced him to 3 years imprisonment, suspended upon his entering into a recognisance to be of good behaviour for 3 years.

3. The applicant has no recollection of the actual assault. He and a friend had gone to Mr Stanik's flat, to speak to a friend of Mr Stanik, Mr Binns, about a tool box that had been stolen from the applicant and found in the boot of Mr Binns' car.

4. Mr Binns and Mr Stanik had been drinking. While the applicant was walking outside with Mr Binns, Mr Stanik ran from the flat carrying an iron bar, with which he struck the applicant on the head. He collapsed onto the ground, unconscious. Mr Stanik threw a shopping trolley onto him. He later hid the applicant's unconscious body in some bushes, where he was found by searching police, who took him to Woden Valley Hospital.

5. There he was found to have a fractured skull, and was admitted to intensive care. He had other minor abrasions and lacerations to his hands, feet and body.

6. He regained consciousness over the next day, but his left pupil was not reacting normally. An ophthalmic surgeon, Dr Pluschke, diagnosed an injury to the left optic nerve. By 2 December 1992 his vision was 6/4 on the right and 6/60 on the left. By 2 June 1993 it was 6/4 right and "count fingers" left best corrected. Dr Pluschke certified that the left optic nerve damage was permanent.

7. Dr Walker, a specialist ophthalmic surgeon, examined him on 17 August 1993. He complained of having only a small island of visual field in the left eye, upwards and outward. He was having difficulty while driving, especially at night, and had to be very careful at work as an apprentice butcher.

8. Internal examination of the left eye showed left optic atrophy, but the pupil reacted normally. Dr Walker certified that the applicant has lost 100% effective vision of the left eye. This can not be corrected surgically.

9. At the time of the assault the applicant was employed as an apprentice butcher. He returned to work on light duties on 26 November 1992. His employer paid him his full wages during his absence. He has become slower and must exercise more care in his trade. There is an increased risk that he may injure himself because of the difficulty that he has judging distances.

10. That this is no mere theoretical increase in risk is demonstrated by an accident that occurred on 12 July 1993, when he stabbed himself while boning a cut of meat, cutting the right femoral artery in the groin. He was admitted to hospital for eight days. He received Worker's Compensation during his absence, but was given four weeks notice of termination of his employment.

11. He was able to transfer his apprenticeship to another butcher in about October 1993. He will complete his apprenticeship about six months later than if he had not been injured.

12. I am satisfied that there must be included in his award an element for loss of income earning capacity, on the basis of the increased risk of accident in a trade such as butchering, and the increased difficulty he would have in finding work if he lost a job for any reason.

13. His solicitors referred him to Dr Ewing for neuropsychological assessment. His history, clinical presentation and test results indicated to her both organic brain dysfunction and psychological disturbance resulting from the assault. There was specific impairment of short term memory, a partial loss of the sense of smell, significant depression and an evolving post traumatic stress disorder. She advised professional assistance, which he proposes to seek, to deal with his organic deficits and depression. With treatment, improvement in his deficits could be expected.

14. I award compensation for his pain and suffering and for his pecuniary loss of $50,000. The expenses of bringing the application were $1,460.

15. I award compensation to the applicant of $51,460.00.