CANBERRA, 27 November 1997 (hearing), 18 December 1997 (decision)

Order: Compensation be awarded to the applicant in the sum of $9,750.

This is an application for an award of compensation under the Criminal Injuries Compensation Act 1983. The applicant sustained injuries when he was stabbed by one Trevor John Karlsson at Kambah on 16 September 1996. Mr Karlsson was found guilty by a Supreme Court jury on 31 July 1997 of assault occasioning actual bodily harm. Mr Howarth's application for compensation is thus properly brought in this Court.

The Australian Capital Territory appeared in this matter and opposed the grant of an award of compensation. It accepted that Mr Howarth had sustained the injuries described in his application, and did not dispute the claimed consequences of the injuries. The argument for the Territory was that Mr Howarth had been the author of his own misfortune by approaching Mr Karlsson with the avowed intention of assaulting him. The Territory argued that I should exercise the discretion contained in section 15 of the Act to decline to make an award of compensation in the circumstances of the case.

"In determining (a) whether or not to make an order awarding compensation; or (b) the amount of compensation to be awarded, the court shall have regard to any behaviour, condition, attitude or disposition of the applicant or the person who sustained the relevant prescribed injury or prescribed property damage which directly or indirectly contributed to that injury or damage, as the case may be."

It was common ground that there was animosity in the relationship between Mr Howarth and Mr Karlsson, who were neighbours in Kambah. There had been a series of disputes over the years. Mr Karlsson's home, which had been rented from the ACT Housing Trust, had burned down, and was scheduled for demolition. Mr Howarth spoke with contractors and an ACT Housing officer and says that he had obtained permission to remove some timber from the site. Mr Karlsson arrived on the scene, and accused Mr Howarth of theft. Police were called, and eventually Mr Howarth agreed to return the timber, and Mr Karlsson agreed to return some tools that Mr Howarth had been using to remove the timber. I was told that when the tools were returned they were thrown to the ground so as to hit Mr Howarth's feet, and that when he picked them up he moved in a manner so as to shove Mr Karlsson.

This unpleasant neighbourhood dispute became further inflamed later in the afternoon. Mr Karlsson had an exchange with Mrs Howarth. She says that he then pushed her. Mr Howarth was told of this, and decided to go back up to Mr Karlsson's house. Mr Howarth was frank in his evidence in chief about his intention. He said

"I was going to punch him - to go up to punch him, yes."

Mr Howarth says that as he approached he noticed Mr Karlsson's dog, which he believed to be savage, and he said that he picked up a broom and held it horizontally, because he was afraid of the dog. He admitted in cross examination that he raised the broom over his shoulder because of what Mr Karlsson did, referring to his claim that Mr Karlsson crouched and had his hand behind his back. He admitted that he swung the broom over his shoulder with the intention of hitting Mr Karlsson, but he said that this was because he

Mr Howarth denied that he had in fact struck Mr Karlsson with the broom. Mr Karlsson gave evidence in the criminal trial that he had been struck. In the end, I do not think that much really turns on this. The common ground is that Mr Howarth and Mr Karlsson had had an argument earlier in the day. Mr Howarth had drunk a few beers in the course of the day, but denies being affected by alcohol. He was told that Mr Karlsson had pushed his wife, and he formed the intention to confront Mr Karlsson, and, in his own admission, punch him. He denied striking Mr Karlsson with the broom, but admitted forming the intention to strike him because he believed that Mr Karlsson was going to do something to him. A short passage from the cross examination well captures this situation.

"In fact, you had gone up that street, or across that street, in fact, to do violence to Mr Karlsson. You had gone up there with the intention of hitting him?--No, I was going to front him like a man.

You were going to assault him. You were going to hit him?--I was going to hit him, that's right.

Yes, okay. And you...?--But the circumstances changed when I got there because the dog was there. That's when I picked the broom up.

So you picked the broom up. You picked the broom up, and you saw Mr Karlsson crouch down and you thought he was going to do something, so you say, and then you swung the broom to hit him?--No, I didn't swing the broom. I went to swing the broom but I never got a chance to swing the broom."

"You swung it over your left shoulder with the intention of hitting Mr Karlsson, did you not?--Yes.

And he got in first, is that not correct?--But he was going to get in anyway, I knew that.

Just - Mr Howarth, simple question, please give me a simple answer. Is it not the case that you swung the broom over your shoulder with the intention of hitting Mr Karlsson and he got in first.?--Yes."

I am satisfied from all of the evidence that Mr Howarth and Mr Karlsson had been involved in a simmering neighbourhood dispute, that had hitherto involved a number of police attendances, and some minor pushing and shoving. On this day matters escalated. Mr Howarth believed that Mr Karlsson had assaulted his wife. He knew that she was on the telephone to the police to report this incident, but he admits that he formed the intention to confront Mr Karlsson himself, and "sort it out like a man". He admits his intention to punch Mr Karlsson or otherwise resolve matters violently. He picked up a broom to, he says, fend off a dog, but then formed the intention to strike Mr Karlsson with the broom.

In fact, Mr Karlsson lunged at him with a fishing knife, a sharp weapon with a blade some 15cm in length. The knife produced stab wounds to his right thigh, right scrotum and left thumb. He attended Canberra Hospital, and was treated. His general practitioner reported in January 1997 that

"The scrotal and thumb wounds both had been sutured with two interrupted sutures each. The thigh wound had not been sutured and had been allowed to heal by secondary intention. The wounds were consistent with the alleged knife attack. Mr Howarth had his wounds re dressed on 18 September 1996 and 20 September 1996. He had his sutures removed on 24 September 1996. He re-presented on 7 November with symptoms of anxiety with insomnia, palpitations and nervousness. He was advised to reduce his caffeine intake and was prescribed a short course of Oxazepan 15mg for four nights to treat his insomnia."

Mr Nomchong, a clinical psychologist, examined the applicant on 6 May 1997 and reported that Mr Howarth reported a range of symptoms consistent with Post Traumatic Stress Disorder, which he diagnosed. He anticipated that the applicant would benefit from therapy, of approximately 15 one hour sessions over a year, at a cost of $146 per session. It is appropriate to award compensation for this likely future expenditure. An award of $2,000 is an appropriate award in the circumstances.

Mr Howarth and his wife both gave evidence that the applicant has lost all motivation since the assault, and has not obtained paid employment. He had worked regularly as a bricklayer, although he was not in work at the time of the assault. I note that his general practitioner said

"I do not know if he was given a work certificate by the hospital. Given one or two weeks for his wounds to heal there should be no reason for ongoing incapacity for work."

Mr Nomchong did not express the view that the applicant's condition precluded him from working. I am not satisfied on the evidence that a claim for economic loss is made out in these circumstances.

There is no doubt that Mr Howarth suffered a relatively severe injury as a result of the knife attack, and that this has had an ongoing impact. This would be an injury which would in the normal course of events generate an award of general damages in the sum of $17,500. I have reached this figure taking into account the physical injury and its psychological impact, and having reference to a range of Criminal Injuries Compensation Act determinations cited before me in the course of argument. This would amount to a total award of $19,500.

It is the Territory's argument that no award should be made in the circumstances of this case. While I must accept the proposition that Mr Howarth was the person who initiated violence by choosing to confront Mr Karlsson and resolve a neighbourhood dispute by way of a fist fight, and then chose to escalate matters by arming himself with a broom, I am persuaded by the argument of his counsel that the response by Mr Karlsson of a stab with a 15cm fishing knife is so disproportionate as to require a degree of compensation to the applicant. Counsel for the applicant does not demur to the proposition that Mr Howarth's conduct should be taken into account in the assessment of his claim for compensation, and should result in a reduction of his damages, but he does say that this is a case where his transgression is not so serious, yet the response is so grave, that the extreme sanction of a refusal to compensate should not be used.

The Full Court of this Court has made it clear that, in an appropriate case, the court should refuse an award of compensation altogether. In the case of the application of Bullock (SCA 79 of 1994, 28 June 1995) the applicant and another had both been involved in a transaction concerning illegal drugs. A dispute arose in which Mr Bullock was the initial aggressor, and he was stabbed by a Mr Finlay. The Master in that case reduced the award of compensation he would otherwise have made to Mr Bullock by 20%. Chief Justice Miles referred to these facts, and said

"The incident was thus so tainted, and the respondent so much the author of his own misfortune, that the Court should exercise its discretion to refuse an award of compensation altogether."

Justice Higgins in that matter also agreed that no compensation should be awarded, and embarked on a comprehensive analysis of decisions in this and other jurisdictions concerning the approach to be adopted when the conduct of an applicant for compensation is raised as a factor for reducing or denying compensation. He noted that the court should adopt an approach analogous to that used for the reduction of verdicts for damages for negligence where contributory negligence is established, by first assessing the appropriate compensation under the ordinary principles, and then considering any reduction. I have adopted this approach in this matter.

He cited with approval a decision of the Victorian Crimes Compensation Tribunal in Re Holt and Crimes Compensation Tribunal (1987) 1 VAR 367 where the tribunal said at 368

"The aim of the legislation, in my view, is to grant modest benefits to innocent victims of crime but is not to compensate those who 'live by the sword' if they are hurt in the process."

While counsel for the Territory urged me to adopt this approach, it is clear that this decision was in the context of a shoot out between two assailants, where the applicant had a record for armed robbery and entered a hotel armed with a loaded gun intent on confronting the other party. In the present case, as counsel for the applicant stressed, the applicant was foolish in deciding to resolve a dispute with his fists, but had no reason to believe that this would result in other than a fist fight with Mr Karlsson.

I note that Justice Higgins, in approving Re Holt, said

He then referred to a decision of Kelly J in this Court in Cadman v The Commonwealth, 22 February 1989, where an assault victim had provoked an assailant with racial slurs and verbal abuse and pushing a table to spill the assailant's drinks. Kelly J there said

"I think that the duty of the Court under {s.15} may be equated generally with its duty when considering whether a plaintiff seeking damages for personal injury is liable to have those damages reduced because of contributory negligence. The applicant's behaviour, attitude or disposition afforded no excuse to Mr Sitautti for what he did. They did, however, contribute substantially to the assault. The provocation which I am satisfied the applicant gave to Mr Sitautti, while no defence to the malicious wounding, has to be taken into account under s.15(1) of the Ordinance. In the circumstances, I think it just and equitable to reduce by 20% the amount of compensation which would otherwise be payable to the applicant."

In Bullock Higgins J noted that in that case there was no prior history of discord between the applicant and the offender. In the present case, of course, this can not be said, and the applicant's history of bad blood with the offender is a further factor to be taken into account.

I am not satisfied that the circumstances of the present case can be equated with Bullock or Re Holt to make the applicant's conduct sufficiently tainted to justify a refusal of compensation altogether. But on the other hand I am not satisfied that his conduct can be equated with that of Cadman. His conduct went beyond verbal abuse and the spilling of drinks, and his prior history with the assailant made it even more likely that when he confronted the assailant, intending to do him violence by way of his fist, the assailant would respond in kind. Respond he did, but with a lethal weapon and in such a manner as to inflict a considerable injury on the applicant, quite disproportionate to the applicant's original intention. Moreover, at the very time that Mr Howarth formed the intention to confront Mr Karlsson and "front him like a man" he knew that his wife was on the telephone speaking to the Police.

Had this application been brought in response to an assault by Mr Karlsson involving fists, or the broom, I would have been minded to deny compensation altogether. But the recourse to a knife must mean that the applicant, however foolish he was in deciding to resolve his dispute with Mr Karlsson, by way of a fist fight, should not be denied compensation altogether. I would, however, reduce his compensation by one half in respect of his conduct. He clearly intended violence, and there was a history of bad blood. Moreover, his wife was at the very time that he left to confront Mr Karlsson, on the telephone reporting the assault to the Police. Mr Howarth should have awaited the Police response. His conduct is more blameworthy, and deserving of a greater degree of reduction, than that referred to by Kelly J in Cadman.