In the matter of an application under the Criminal Injuries Compensation Act 1983 and Marta Norma Amsteins [1999] ACTSC 10 (25 February 1999)

Last Updated: 7 October 1999

In the matter of an application under the Criminal Injuries Compensation Act 1983 and Marta Norma Amsteins

[1999] ACTSC 10 (25 February 1999)

CATCHWORDS

CRIMINAL INJURIES COMPENSATION - Secondary victim - Post traumatic stress disorder - Son was victim of very serious assault - No issue of principle.

No. CIC 426 of 1996

Coram: Master T Connolly

Supreme Court of the ACT

Date: 25 February 1999

IN THE SUPREME COURT OF THE )

) No. CIC 426 of 1996

AUSTRALIAN CAPITAL TERRITORY )

IN THE MATTER OF AN APPLICATION

UNDER THE CRIMINAL INJURIES

COMPENSATION ACT 1983

AND: MARTA NORMA AMSTEINS

Applicant

ORDER

Judge Making Order: Master T Connolly

Where Made: Canberra

Date of Order: 25 February 1999

THE COURT ORDERS THAT:

1. Compensation be awarded to the applicant in the sum of $29,588.40.

1. This is an application for compensation pursuant to provisions of the Criminal Injuries Compensation Act 1983. The applicant, Marta Norma Amsteins, is the mother of a young man who on 13 January 1996 was the victim of a savage assault involving a knife while standing with friends in Civic. He suffered very severe injuries to his heart and lungs, and was in a critical condition in hospital for some time. His mother brings this application in respect of the injuries, namely post traumatic stress disorder, which she has sustained as a consequence of this assault on her son. The matter is properly within my jurisdiction as the offender was dealt with in this Court and sentenced to a period of imprisonment.

2. There was no dispute that the applicant had suffered genuine psychological injury as a consequence of this assault which went beyond the normal reactions of grief and distress which would be normal when a mother learns of an assault on a child. The issue before me was confined to the appropriate quantum of compensation.

3. It is well recognised that compensation is available under the Act to "secondary victims" of criminal behaviour who suffer psychological effects upon observing, or even learning of, the relevant criminal behaviour. While lawyers originally referred to such claims as "nervous shock" cases, modern psychiatry has of course developed much more sophisticated definitions of post traumatic stress disorder and depression.

4. At the time of the assault the applicant was holidaying at the south coast with her husband and younger children. She was woken by a police officer at about 1 a.m. and told that her son had been stabbed in a fight in Canberra. The applicant and her husband contacted the police in Canberra and were told that their son was in a critical condition. They arranged care for their younger children and returned immediately to Canberra and to Woden Hospital.

5. The applicant's son was in the operating theatre when they arrived, and he did not regain consciousness until some 14 days after this operation. It is apparent that, despite the best efforts of the medical teams that were attending to her son, it was not certain whether he would survive the assault.

6. During the period that her son was unconscious the applicant stayed at the hospital and rarely slept. He regained consciousness and was moved to a rehabilitation ward, and the applicant remained with him. She says that she only slept at home for some three nights during the total period of some three months in which her son was in the hospital. When he was discharged she attended to his immediate needs, and also accompanied him on daily visits to the rehabilitation centre, and to various other treatments.

7. The applicant has provided a report from Dr Knox, a consultant psychiatrist, who saw her in November 1996. He sets out in some detail the applicant's understandable distress during this period as she attended to her son.. She lost considerable weight, and suffered nightmares when she was able to sleep. There were concerns that blood loss to her son's brain might have caused long term brain damage, which of course only made her concerns deeper.

8. Dr Knox described the applicant's background as a migrant to Australia fleeing the political violence and repression of Chile, where she had been imprisoned by the military dictatorship. She saw Australia as a peaceful place to settle and raise her family, and this has added to her distress following the attack upon her son.

9. Dr Knox concluded that the applicant

"...meets the diagnostic criteria for Post Traumatic Stress Disorder, having been exposed to the experience of threatened death to her son, and being in a helpless fearful situation regarding her fate. She has had a number of unpleasantly re experiencing episodes over the months, and manifested various phenomena of avoidance and increased arousal as described in this report. I would expect your client's Post Traumatic Stress Disorder to remain active for a further period of one or two years. Much will depend on her son's capacity to resume a more normal life, although he will remain permanently disabled in some key areas."

10. The applicant's general practitioner, Dr Marcus, reported in December 1998 that he had been treating the applicant since June 1998 for depression secondary to her son's assault. He noted in his report that the applicant had previously seen a psychologist, and that her symptoms were consistent with depression. He has provided her with anti depressant medication.

11. He noted that the applicant was keen to resume her life and had undertaken some study. She had in November found employment as a restaurant supervisor. He said

"Her condition is stable at present and she is improving well with her management. Her prognosis is favourable especially if her son starts to settle after finding a casual job and receives his counselling regularly."

12. I was advised by her counsel that in fact the employment had not been successful, and that this had ceased. Mrs Amsteins produced affidavits at the hearing of this matter, and was available for cross examination, but was not required. I accept the truthfulness of all that she says in her affidavit.

13. Counsel for the Territory referred me to matters CIC 280/95 and CIC 25/96 to suggest a range for general damages in the order of $15,000 to $20,000. Counsel for the applicant suggested a higher range. In reaching my decision on the appropriate quantum I have had regard to all of the medical evidence and the evidence of the applicant in this matter. I have also looked to my decision in CIC 267/96 and matters CIC 98 and 99 of 1991 decided by Master Hogan. Taking all of these factors into account I would award compensation in the sum of $27,000 in respect of the applicant's pain and suffering following the assault upon her son.

14. It was agreed that the appropriate award for out of pocket expenses pursuant to s. 5(4) of the Act was $1,000, and that treatment expenses to date pursuant to s 6(1)(a) were $1,588.40. This amounts to a total award of $29,588.40.

15. Counsel for the applicant told me that, with this application, the applicant's involvement with the justice system following from the assault upon her son will be reaching its end. I hope that the finalisation of her claim will assist her in putting this terrible event behind her, as far as possible, and resuming her life.

I certify that this and the three (3) preceding pages are a true copy of the Reasons for Judgment herein of the Master, Mr T Connolly.

Associate:

Date: 25 February 1999

Counsel for the Plaintiff: Mr C Edwards

Instructing Solicitors: Maliganis Edwards Johnson

Counsel for the Defendant: Mr K Holmes

Instructing Solicitors: ACT Government Solicitor

Dates of hearing: 18 February 1999

Date of judgment: 25 February 1999