Criminal Injuries Compensation Act 1983 Kevin Michael Marshall [1995] ACTSC 77 (20 July 1995)

SUPREME COURT OF THE ACT

CRIMINAL INJURIES COMPENSATION ACT 1983
KEVIN MICHAEL MARSHALL
No. CIC197 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 - Assault on a minor - Applicant kicked in the mouth - Damage to teeth - Need for future dental treatment - Psychological damage - Need for counselling - Interim award of compensation.

HEARING

CANBERRA, 8 June 1995
20:7:1995

Counsel for the Applicant: Mr Livingstone with Mr P. Dwyer

Instructing Solicitors: J.S. O'Connor, Harris and Co.

Counsel for the Territory: Mr K. Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:
1. An interim award of compensation be granted to the applicant in

the sum of $15,000.00.
2. Direct that award be paid into Court.
3. On the filing of an undertaking by the applicant's solicitor to
pay to the persons entitled to reimbursement of the expenses of
bringing the application and of treatment, I direct the payment
out to the applicant's solicitor the sum of $3,193.
4. Direct that the balance be paid to the Public Trustee to be dealt
with for the benefit of the applicant pursuant to the provisions
of the Trustee Act.

DECISION

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

2. On 28 June 1994 Travis Lenard Kirchner was committed for sentence in this Court on a charge of recklessly inflicting grievous bodily harm on the applicant. On 30 August 1994 he was convicted and sentenced to 6 months imprisonment, which was suspended upon his entering into a bond to be of good behaviour for three years.

3. In November 1993 the applicant was a school child, aged 10, living at home with his mother and younger sister, Nikki. Kirchner was a friend of the applicant's mother, and had lived with her and the children from time to time during the previous five months.

4. At about 630 p.m. on 18 November Kirchner accompanied the applicant's mother and the two children on a walk to the Dickson shops. There was an argument about his picking a rose. He left and went to his father's house. As the children and their mother were passing that house he threw something at her, and a further argument broke out. He followed them towards their home, while the quarrel continued. He then chased her and began to hit her. The applicant ran across the road, jumped on to his back, and told him not to hit his mother.

5. Kirchner shook him off, and kicked him violently in the face with his right foot. The child ran towards his mother, and then collapsed. When she picked him up he seemed to be in shock. Blood was coming from his mouth, and teeth seemed to be missing. There was also a swelling already to the area of his left eye. He was taken home. His mother was there further assaulted. Eventually police and an ambulance were called, and he was taken to Calvary Hospital.

6. At the hospital two teeth were reinserted, and grazes to his left knee and both thighs were noted. He was sent home, to be seen by the dentist the next morning.

7. Initial treatment was undertaken by the school dental service. On 22 November 1993 it was noted that teeth were mobile and painful, and an x-ray was taken. The nerve was removed from one tooth, and a splint was fitted to immobilize them. Further checks were made in November and December, and the splint was removed on 23 December 1993. The dental officer advised that further treatment would be needed, which would be beyond the resources of the school dental service.

8. He was referred therefore to Dr. Wong, paedodontist, who saw him first on 22 April 1994, and undertook his treatment. He found that teeth 11 and 12 had been avulsed, and that 21 had suffered a crown root fracture. He noted that the child was distressed, worried about losing his teeth, and still suffering nightmares. He took X-Rays and commenced root canal therapy. He expected treatment to take some considerable time. Prognosis was difficult. He expected tooth 11 to be lost in three to five years. 12 was at risk. He expected to retain 21, but only with lengthy treatment. Permanent restoration would need to be postponed until the applicant reached 18 years of age. The applicant would need constant dental treatment and review for the remainder of his life. Immediate costs were over $600. Future costs were difficult to quantify, but could be of the order of $7000 to $10000.

9. The Phillip health center also referred the applicant for counselling to Georgia Tayler, clinical psychologist. She had four sessions with him, and also with his mother. He appeared at first to have made a good adjustment, but there were undoubted psychological effects, which were difficult to ascertain precisely, and some of which were likely to persist.

10. By March 1993 Dr. Wong had completed the root canal therapy for tooth 12. Tooth 11 was still undergoing resorption, and may still be lost within the next three to five years. Tooth 21 had been restored and was ready for extrusion and periodontal surgery. He confirmed that the applicant will need regular dental treatment and review until at least the age of 18. The cost of his treatment to date was $1,320.

11. His solicitors referred him to Dr. Knox, consultant psychiatrist in May 1995. He also thought that some psychological healing had taken place, but that the applicant would remain vulnerable to stresses in the future. He recommended that he should undergo counselling assessment every one or two years in order discreetly to oversee his progress.

12. His general practitioner reported on 7 June 1995 that he was seeking the opinion of a nasal specialist about some symptoms that might possibly be related to the assault.

13. In these circumstances counsel for the applicant submitted, and counsel for the Territory agreed, that it is preferable to make an interim, rather than a final, award. I agree.

14. The expenses so far incurred of bringing the application are $1,993. To date $1,200 has been spent on treatment. I make an interim award of $15,000.

15. I direct that the award be paid into Court.

16. On the filing of an undertaking by the applicant's solicitor to pay to the persons entitled to reimbursement of the expenses of bringing the application and of treatment, I direct the payment out to the applicant's solicitor of the sum of $3,193.

17. I direct that the balance be paid to the Public Trustee to be dealt with for the benefit of the applicant pursuant to the provisions of the Trustee Act.