Re An Application Under the Criminal Injuries Compensation Act 1983 and Craig Peter White [1997] ACTSC 36 (15 May 1997)

SUPREME COURT OF THE ACT

IN THE MATTER OF AN APPLICATION UNDER THE CRIMINAL INJURIES COMPENSATION ACT
1983 and CRAIG PETER WHITE
No. CIC 32 of 1997
Number of pages -
5
Criminal Injuries Compensation

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

MASTER T CONNOLLY

CATCHWORDS

Criminal Injuries Compensation - Applicant investigating apparent robbery at neighbour's house - Vicious life threatening assault by 4 youths - Repeatedly stabbed, kicked and punched - Stab wounds to abdomen, lung, bowel - Post traumatic stress disorder.

Criminal Injuries Compensation Act 1983, s.6(6); s.15

Re the Matter of the Criminal Injuries Compensation Ordinance (1984) 58 ACTR 16

A.C.T. v Bullock (unreported, Supreme Court of the ACT, Miles CJ, Gallop and Higgins JJ, 28 June 1995)

HEARING

CANBERRA, 15 May 1997 (hearing and decision)

15:5:1997

Date of Reasons for Decision: 23 May 1997

Counsel for the Applicant: Mr G Brackenreg

Instructing Solicitors: Meyer Boettcher & Clapham

Counsel for the Territory: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

ORDER

THE COURT ORDERS THAT:

Compensation be awarded to the applicant in the sum of $51,392.

DECISION

MASTER T CONNOLLY

This is a claim for compensation pursuant to the Criminal Injuries Compensation Act 1983. The applicant, Craig Peter White, was the subject of an assault on 22 January 1996. His assailants have been dealt with by the Courts, and the principal assailant has been sentenced to a term of imprisonment by the Supreme Court. This application thus falls properly within my jurisdiction.

The applicant is now 31 years of age, and has been a primary school teacher, specialising in physical education, since 1988. On the day of the attack Mr White was enjoying his vacation, and was undertaking some handyman projects around his home, building a pergola. He cycled to a local hardware store from his home in Downer, and was returning with some paint when he noticed a van parked in the driveway of his neighbour's home. He was aware that his neighbours were holidaying down at the coast, and he had promised to "keep an eye on their place".

Mr White says that he thought at first that the van might have been from ACTEW, but that as he approached more closely he noticed a group of young men of Asian appearance loading a video and household equipment into the van. He wrote down the registration details of the van, and then challenged the men. They spoke in a language that he did not understand, and he was then confronted with a sawn-off shotgun and a knife. He was ordered to go around to the back of the house. Fearing that if he complied, and went with an armed group away from the relatively exposed driveway he could be killed, he attempted to escape by pushing the shotgun away. In the ensuing struggle he was stabbed severely in the lower chest and abdomen area, and was punched and kicked.

The attackers fled in the van, and the plaintiff recalls struggling across the road to his home, bleeding quite severely. His wife, who was some twelve weeks pregnant at the time, was working as a nurse on night shift, and was sleeping at the time. He was unable to attract her attention, but eventually gained entry to his home. By this time his blood loss was considerable. His wife provided some immediate attention, and called an ambulance. Mr White was taken to Woden Valley Hospital. He recalls being attended to in the ambulance by paramedics, and recalls the ambulance speeding up to rush him to hospital.

In the emergency department he recalls being seen by a surgeon, and giving consent to emergency surgery. A report was tendered by Professor MacLellan, Professor of Surgery at Woden Valley Hospital, that states that the ambulance officers noted considerable loss of blood at the scene of the attack, and provided fluid in transit, but that his blood pressure was dropping during transit to the hospital. He records that, immediately on admission the applicant was shocked and required resuscitation. He was stabilised and radiological and CT scans were performed. Mr White has a recollection of the unpleasantness of the CT scan. Professor MacLellan's report shows that he was summoned to the hospital at 6.30 pm by the surgical registrar, and on examination of the applicant he decided that the stab wounds had ruptured the bowel and that an urgent labarotomy was required.

The applicant was taken to theatre at 6.55 pm and the operation was completed by 9.30 pm. Professor MacLellan's report shows that the applicant had some problems with his recovery, and that he required assistance from the Acute Pain Unit. He was discharged home on 2 February 1996 for review by his general practitioner, but he suffered considerable abdominal pain that night and was vomiting bile, and his wife insisted that he present again at the hospital. He was re-admitted the next day, and remained in hospital under Professor MacLellan's care until 7 February.

When Mr White presented to his general practitioner after release from hospital he had considerable weight loss, and was generally bruised and in pain, with restrictions of movement. He still had vomiting, and his mood was depressed. Dr Jamison found that his soft tissue injuries arising from the assault were resolving, but that his stab wound continued to cause problems, and that he was, in the general practitioner's opinion, suffering from post trauma stress. This diagnosis was confirmed in a report from Ms Blane, a clinical psychologist, dated August 1996. She found that the applicant met the diagnostic criteria for post traumatic stress disorder, but she felt that his prospects for recovery were good, provided he received some ongoing counselling.

Mr White says that the birth of their daughter in July 1996 was a very happy time for both he and his wife, as they had, understandably, been most concerned as to the effect the stress and trauma of this attack may have had on their child, and as a result he was feeling much better around the time of Ms Blane's report, but that in recent months he has found himself to be again having flashbacks and dwelling on the events. He said that he would undertake additional counselling if funds were available.

In addition to the stress of the attack itself, Mr White found the process of the criminal trial disturbing and stressful. He was required to give evidence at the committal proceedings, and as a result of a technical issue arising in the first day of the Supreme Court trial, he had to give his evidence in this Court twice. He said that he found it threatening and disturbing to be waiting outside Court with a group of young Asian men. He had been told by police that the assailants were involved with a group based in Cabramatta, and that they were involved in bringing drugs to Canberra and burglaries whilst here. He was aware that one of the assailants was also facing charges arising from a knife attack in Civic on a young man which had attracted considerable publicity in Canberra, as had his attack. He was concerned that his role in providing information which assisted police in bringing the offenders to trial had received widespread attention, and that, as he and his wife and their new baby were still living at their home, which had been shown on television news stories, they were under some degree of danger. Despite police assurances, a perception of danger remains.

I am satisfied from the evidence given by Mr White, and from the medical evidence, that he has suffered a very serious and potentially life threatening knife wound, as well as psychological injuries properly described as post traumatic stress disorder. He was in genuine fear of his life on being confronted with a sawn-off shot gun, and then was stabbed, punched and kicked, sustaining an injury that could have cost him his life.

His psychological difficulties remain, but are improving. His physical injuries likewise remain but are improving. With the support of his colleagues at his school and the Education Department he returned to part time teaching in late March. For a couple of weeks he assisted with a relief teacher who had his class . He was able to resume full time work in May 1996. He says that before the accident he put a lot of extra time into both co-ordinating the sports programme at the school and coaching teams. He was unable to do any of this in 1996, but has resumed the co-ordination aspects this year. He says that he is starting to get more involved in physical tasks, but still feels limitations. He has not regained his pre assault weight and fitness.

Counsel for the Territory, while conceding that this was a very serious assault, urged that this was not a matter that should attract the maximum award of compensation. To the extent that this argument suggested that the statutory cap of $50,000 was to be reserved for the "most serious case" and that claims should be assessed against a notional $50,000 most serious case, the submission is in error. There is clear authority for the proposition that it is the role of the Court, in assessing a claim for criminal injuries compensation under the Act, to apply the general principles of assessment of general damages for personal injuries to the applicant in the same way as if this was a tortious claim for damages for personal injury: Re the Matter of the Criminal Injuries Compensation Ordinance (1984) 58 ACTR 16 per Kelly J. This sum, subject to s.15 of the Act, is to be awarded in full, but if this process of assessment would properly result in an award in excess of $50,000, the Court may only award the statutory maximum.

I am satisfied, having heard the applicant and examined the medical evidence in support of the application, that this is a case which, properly assessed, would result in an award of general damages in excess of $50,000. At the conclusion of the hearing of this matter I indicated that this was my view, and made the award, but I said that I would prepare these written reasons for later delivery.

The applicant was a young man who was clearly an active physical education teacher, putting in considerable efforts to organise and coach sports at his school. He was confronted by a shotgun and a real fear of death, and then subject to a vicious knife assault which could well have cost him his life. He underwent emergency surgery, and was hospitalised for some 10 days. He was released from hospital, but re-admitted following complications for an additional 5 days. His physical injuries still have an effect on his life. He was able to return to his work, but has only this year started to resume his former activities, and he still has limitations on his physical activities.

He has suffered a genuine and ongoing post traumatic stress disorder. This has been caused both by the initial threat, the actual assault, and the aftermath of the hospitalisation and his efforts to assist in the criminal prosecution of the offenders. He has an ongoing, and understandable, fear for his family and himself. Despite the happy event of the birth of their daughter, he feels the attack and its aftermath has adversely affected his relationship with his wife. Taken together, I have no doubt that his general damages, properly assessed, would exceed $50,000, and so an award of the statutory maximum of $50,000 is appropriate.

Section 15 of the Act requires a Court in determining the amount of compensation to be awarded, to have regard to

"...any behaviour, condition, attitude or disposition of the applicant...which directly or indirectly contributed to that injury or damage".

This section is usually relevant where the conduct of the applicant is seen to have been partly a cause of their own injury in circumstances where a reduction in the award is appropriate: A.C.T. v Bullock (unreported, Miles CJ, Gallop and Higgins JJ, 28 June 1995). But the section does not limit the impact of conduct to a reduction in damages. In this case the applicant is not just an innocent victim of a savage assault. The applicant, by his own conduct, placed himself in a position of some danger, by doing what we would all like to think we would do for our neighbour. He had said that he would keep an eye on his neighbour's home while they were away on holidays and, noticing a strange vehicle in the driveway, he went to investigate. This is a commendable thing to do, and the sort of thing that we all rely on in our community. To the extent that I may have erred in assessing the appropriate award of general damages in this case to exceed $50,000, I would rely on s.15 of the Act as a justification for taking a more generous approach than would otherwise be the case. While s.6(6) of the Act provides that

"...compensation awarded shall not include any amount in the nature of exemplary, vindictive or aggravated damages",

it seems to me that the Act's requirement that I must look at an applicant's conduct leads me to take the most favourable course of any alternatives open to me in relation to the assessment of damages in this case.

As I have found that the appropriate award of general damages would exceed the statutory maximum, I need not consider the claim for ongoing medical costs, but I should indicate that, if general damages were to be set at a lower level, I would have awarded the sum of $2,500 for future counselling costs, being $1,420 for 10 individual sessions, which was an agreed sum, and the balance for the applicant's cost of the suggested 12 joint sessions with his wife. A claim was made for a sum to reflect the applicant's claimed loss of sick leave, but I am not convinced that this is properly made out, and I would not have made an award in respect of this.

The applicant's costs, other than legal costs, incurred in bringing the matter to hearing were $1,392, which I award. This amounts to an award of $51,392, which I ordered to be awarded at the conclusion of the hearing.