Re An Application Under the Criminal Injuries Compensation ACT and Wynne Filsell [1995] ACTSC 34 (13 April 1995)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
AND WYNNE FILSELL
No. CIC251 OF 1994
Number of pages - 3
Criminal Injuries Compensation

COURT

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

CATCHWORDS

Criminal Injuries Compensation - Assessment - Assault - Elderly lady victim - Post traumatic stress disorder - Property damage - Damage to spectacles - Removalist expenses - Housekeeping expenses.

Criminal Injuries Compensation Act 1983 s.2

HEARING

CANBERRA, 16 March 1995
13:4:1995

Counsel for the Applicant: Mr Nicholl

Instructing Solicitors: Jill McSpedden and Associates

Counsel for the Territory: Mr Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. Compensation be awarded to the applicant of $40,839.00.

DECISION

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

2. The application arises from the criminal conduct of Isidoro Zocchi who was, on 21 June 1994, sentenced in this Court by Chief Justice Miles to concurrent terms of 3 years imprisonment, after having been found guilty by a jury of robbery by force, theft and recklessly inflicting actual bodily harm upon the applicant.

3. The applicant, who was aged 77 years at the time of the crimes against her, was mugged and robbed while on her way to the shops on the morning of 11 March 1993. She was struck from behind and knocked to the ground by Zocchi, who then robbed her of her handbag, which contained $95.00 in cash, a cheque book, credit cards, prescription glasses and personal belongings.

4. As a result of the assault, the applicant suffered from bruising to both knees, bruising to her left arm and side, a severe tendon injury to her left wrist and a dislocation of her left thumb. In addition to these physical injuries, she suffered severe shock which manifested itself in nausea, sleeplessness, paranoia and general emotional instability. In her evidence the applicant states that whereas before the assault she had walked everywhere and was quite independent, now she was afraid to go out alone, and could not walk without a stick.

5. She visited her general practitioner, Dr Veronica Goldrick, 5 days after the attack. In her report of 15 August 1994, Dr Goldrick notes that the applicant had "aged 10 years" since her previous visit on 26 February 1993, and that she was emotionally strained and unable to sleep because of the trauma of the assault. She was prescribed Tryptanol to help her sleep.

6. Dr Goldrick notes in her report that the applicant fell on 5 July, implying it to be a result of her "distressed and unsteady state" following the attack. Although the applicant has a history of back pain, this was greatly exacerbated by the attack and was so severe following the fall that she was taken to Woden Valley Hospital where she remained for 10 days.

7. Dr Goldrick summarised the applicant's physical condition and concludes her report by saying:
"Mrs Filsell, prior to the assault, was an elderly lady who suffered

from hypertension, degenerative joint disease and chronic
obstructive airways disease but despite these disabilities, managed
extremely well. All conditions were under control and since the
assault she has really been just a shadow of her former self. I
predict that, because of her age, she will really never be the same
as she was prior to the assault. Her back pain and knee pain are
with her constantly and the post-traumatic stress reaction which
she suffers, I expect to continue indefinitely. An incident such
as this for a younger person would have caused considerable stress
but for an old lady like Mrs Filsell, I would expect the effects to
be permanent.
The disabilities I have described are certainly consistent with the
assault and my prognosis for her future condition is poor. I feel
that this event will accelerate the pre-existing conditions from
which she has suffered."

8. The applicant lives with her daughter. The arrangement between them before the assault was that the applicant would carry out the housework and gardening while her daughter went to work. Following the assault the applicant is no longer able to perform those tasks and makes a claim under s.6(1)(a) for the expense of employing a housekeeper and gardener. However, it was conceded by counsel for the applicant that as those services had been provided by the applicant to her daughter, and were not now being done for her own benefit, the cost was not an expense reasonably incurred by the applicant as a consequence of the injury.

9. A claim was made for the cost of replacement of her handbag and contents and repair of a watch. Property damage in general is not compensable under this Act unless it is "prescribed property damage", as defined in s.2, which does not include the loss suffered in the circumstances of this application. However, "injury" as defined in that section does include "damage to spectacles". In my opinion, that definition includes the complete loss of the spectacles that were in her handbag, and I allow the sum of $279 claimed for that item.

10. As a direct consequence of her injuries the applicant felt obliged to move to Wanniassa, and incurred $560 in the expenses of moving.

11. Although the initial injury she sustained in the assault did not seem to be severe, Dr Goldrick's assessment of the effect of the crime upon her was confirmed by my observation of her at the hearing. Despite her courage she has been substantially deprived of the amenity of life to which she could have looked forward for her remaining years. Her post traumatic stress disorder will continue indefinitely. Her suffering from her pre-existing conditions has been and will be permanently exacerbated and accelerated.

12. For her pain and suffering I award $40,000.

13. I award compensation to the applicant of $40,839.00