Criminal Injuries Compensation Act 1983 and Ian Genter [1995] ACTSC 36 (13 April 1995)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ACT 1983 and IAN GENTER
No. CIC92 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 - Provocation - Knife lacerations - Vicious and prolonged attack - Disproportionate to provocation.

Criminal Injuries Compensation Act 1983 s.15(1)

HEARING

CANBERRA, 16 March 1995
13:4:1995

Counsel for the Applicant: Mr D Claxton

Instructing Solicitors: Wood Fussell

Counsel for the Respondent: Mr K. Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

The Court orders that:

1. Compensation be awarded to the applicant in the sum of $31,823.75

DECISION

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

2. The application arises from an assault on the applicant by Gregory Hinton and David Henthorn on 22 May 1993. On 4 October 1994 Hinton pleaded guilty in this Court to charges of attempting to intentionally inflict grievous bodily harm on the applicant, threatening to kill him, and assaulting him, occasioning to him actual bodily harm.

3. A question has arisen whether the sentencing judge should disqualify himself from determining the matter, and it has not yet been finalised.

4. On the same date Henthorn pleaded guilty to threatening to kill the applicant and assaulting him, occasioning to him actual bodily harm. On the first count he was ordered to enter into a bond to be of good behaviour for 12 months, and on the second he was fined $1,000.

5. The applicant is a married man, aged 25, and a bricklayer by occupation, although he is presently unemployed. He had, before 22 May 1993, been involved with Mr Hinton in a number of incidents, which has resulted in considerable ill-feeling between them.

6. On that evening the applicant had been drinking at a number of establishments with a friend, Michael Katsoulis. In the early hours of the morning they arrived at the "Hungry Horse" in Belconnen. The applicant was well affected by alcohol. Mr Katsoulis was not.

7. While Mr Katsoulis was buying some drinks the applicant saw Mr Hinton seated at a table with a girl and Mr Henthorn. Mr Hinton called out to him "You're going to die, Genter." He walked over to the table and said to Mr Hinton, "What's your fucking problem, arsehole?"

8. Mr Henthorn jumped from his seat and pushed the applicant against a wall. Mr Hinton then also got up and approached. The applicant punched him in the face in self defence. Hinton stabbed him on the inside of his right knee, the left side of his left knee, and the lower left abdomen.

9. Mr Katsoulis and other patrons freed him from the grip of his assailants and he left the premises, with Hinton and Henthorn following, saying "You're going to die." Hinton was still presenting a knife as he followed the applicant in the street. There was a further struggle, during which the applicant's jumper was pulled up over his head, and he was hit a number of times, and slashed with a knife about the upper body.

10. He pushed his jumper off and continued to back away. He went towards an ambulance which had arrived in the area. He collapsed by the side of the ambulance. While an ambulance officer attempted to attend to his wounds Mr Hinton kicked him repeatedly in the upper body, though his state of consciousness was such that he has no memory of that part of the attack. His attackers were dragged away. The ambulance officers stabilised his condition and took him to Woden Valley Hospital. The injuries noted were 9 lacerations, mild bruising to the lower back and superficial abrasions to the lower central back. The lacerations to the left lower abdomen and the right knee were the more serious. All the lacerations except that to the left upper arm required sutures. The doctor used 19 stitches in all. After some hours of observation the applicant was allowed home.

11. He attended Dr Allan, a general practitioner, on 25 May 1993. He described the lacerations as follows:

"#1: 1cm superficial on right angle of jaw with angled graze
on ear lobe.
#2: Back of base of skull 1cm - vertical.
#3 and 4: Left shoulder over trapezius.
#5: Right shoulder - 5cm.
#6: Left upper inner arm - 1cm.
#7: Suprapubic - 1.5cm long and 2cm deep.
#8: 3.5cm lateral side of right knee.
#9: 6cm median side of right knee."

12. When Dr Allan reviewed him on 31 May 1993 there was swelling around the suprapubic wound. Dr Allan referred him for ultrasound, which demonstrated that the peritoneum had not been penetrated, and that the swelling was tissue fluid.

13. The injuries, especially the injury to the right knee, prevented him from working as a bricklayer's labourer.

14. Dr Allan reviewed him again on 14 July 1993. He reported nocturnal knee pain. There was evidence of tendonitis, which Dr Allan treated with an injection of cortisone. On that day also he certified that the applicant was unfit for work from 23 May 1993 to 23 August 1993.

15. No recent medical evidence regarding the applicant's recovery was tendered. In his report dated 20 May 1994, Dr Allan stated that he expected complete recovery to have occurred by that date.

16. Prior to the assault, the applicant was working as a bricklayer's labourer. He states in his affidavit that he earned approximately $625.00 gross per week. He had still not returned to work by May 1994, but there was no medical evidence to support a claim for economic loss beyond the period certified by Dr Allan. I think that the claim for $6,500 for loss of earnings is reasonable in the circumstances.

17. S.5(4) expenses are agreed at $40.00 for the report of Dr Allan. S.6 expenses are agreed at $283.75.

18. The assault was terrifying and prolonged. At the time the applicant had good reason to fear injuries far more serious than they turned out to be. I think that a proper compensation for his pain and suffering is $25,000.

19. Had the incident at the Hungry Horse resulted in a black eye and a bleeding nose for the applicant, the application of s.15(1) of the Act might well have resulted in his not receiving any award. In the light of the previous relationship between them, and the applicant's knowledge of the sort of person that Mr Hinton was, his reaction to Hinton's taunt by confrontation would certainly have contributed to that sort of injury.

20. But the immediate infliction of stab wounds, followed by the pursuit into the street and the further assaults even while he lay, semi-conscious, being attended to by an ambulance officer, were so far out of proportion to anything that he should have expected that I do not think his behaviour, condition, attitude or disposition should adversely affect the award.

21. I award compensation to the applicant of 31,823.75.