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  • Unreported Judgment

DAS v NAB

 

[2010] QSC 234

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

DAS v NAB [2010] QSC 234

PARTIES:

DAS
(applicant)

v

NAB
(respondent)

FILE NO/S:

BS 13063 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2010

DELIVERED AT:

Brisbane 

HEARING DATE:

21 June 2010

JUDGE:

Fryberg J

ORDERS:

The respondent pay compensation of $14,500.00 to the applicant because of the injuries inflicted upon the applicant by him on 04/01/2005.

CATCHWORDS:

Criminal law Procedure Criminal injuries compensation Queensland Evidence and procedure Evidence Evidence of injury Weight to be given to secondary evidence depends on verification by the applicant

Criminal Offence Victims Act 1995 (Qld)

COUNSEL:

Y Chekirova for the applicant

The respondent appeared on his own behalf

SOLICITORS:

Campbell & White Lawyers for the applicant

The respondent appeared on his own behalf

HIS HONOUR:   The application before the Court is for compensation pursuant to the Criminal Offence Victims Act. The application was filed in November 2009 before the repeal of that Act.

 

The respondent was convicted in the Supreme Court on the 21st of November 2006 of a number of counts which included or which comprised, in relation to the applicant, wounding with intent to disfigure and, in relation to the applicant's wife, a number of offences of violence and property damage.

 

The circumstances were that the respondent coached one of the children of the applicant at football and in the course of so doing, formed a relationship with the applicant's wife.  She separated from the applicant and continued the relationship for some four months with the respondent. Thereafter, she reconciled with the applicant and returned to their home.  She seems to have maintained some friendship with the respondent to the knowledge of the applicant.

 

Over a period of time, the offences involving applicant's wife occurred and events culminated on the 4th of January 2005. She went to the respondents house on that day, in the afternoon.  After phone calls from her husband, an altercation occurred between her and the respondent and she tried to leave.  She was then subjected to various forms of violence but went home and subsequently, her husband took her to the hospital.  After their return, in the small hours of the morning, the respondent went to their home, broke in, breaking a glass window, and continued his argument with the applicant's wife.  He demanded that she go with him and she tried to stall knowing the police had been called.  He armed himself with a piece of glass and threatened to kill the applicant.  He went into the room where the applicant was with the two young children, waving the piece of glass in a slashing motion from side to side.  He punched the applicant a number of times and cut him on the arm, the chest, the neck and the nose with the glass.

 

The applicant sustained a 1 centimetre cut to the nose, a 2 centimetre cut to the left chest, a 3 centimetre abrasion on the left neck, a 2 to 3 centimetre bruise on the right upper arm and a 1 centimetre incised wound on that arm.  It may be inferred that the whole experience was terrifying. The applicant has deposed that, since the incident, he has become hypervigilant.  He is unable to sleep past 4.30 a.m. and he wakes with a start.  He regularly has nightmares about the incident and wakes every two hours and checks the doors to make sure they are locked.  He has difficulty trusting people and does not give his address or phone number out.

 

However, although the incident occurred in January 2005, and although he was referred to a psychologist for treatment, he attended the psychologist only twice and ceased treatment on the basis that it was not achieving anything.  He was prescribed antidepressants by his general practitioner but refused to take them.  His marriage has been difficult since these events.

 

In a Victim Impact Statement he says that his wife's personality had changed a lot and that they lived very separate lives.  She was, he said, a complete bitch to live with.  He said he had panic attacks when he saw a Toyota, the type of car driven by the respondent.  He has been left with minor scarring.

 

The applicant was examined by Mr Hatzipetrou for forensic purposes only.  A report prepared by that psychologist found that the applicant had a range of items within a diagnostic scale of 49 items for post-traumatic stress disorder. However, that measure is not designed to replace a clinical diagnosis.  There are six diagnostic criteria which must be met for such a diagnosis and not all were met.  The report does not set out clearly what the six diagnostic criteria are but records that the symptoms experienced by the applicant included having upsetting thoughts or images about the event that came into his head when he didn't want them to, having bad dreams and nightmares about the event and feeling emotionally upset when reminded of the event.  Regrettably, the applicant's affidavit does not verify the existence of these matters apart from the nightmares.

 

The report also records that DAS has attempted to avoid these symptoms and that he did meet criteria for avoidance. That was said to be an endorsement by the applicant of trying not to think about, talk about or have feelings about the event and trying to avoid activities, people and places that reminded him of the event.  Again, there is very little evidence to support the existence of those alleged symptoms.

 

On the basis of what was told to him, Mr Hatzipetrou diagnosed post-traumatic stress disorder of moderate severity.  He found that result largely consistent with the clinical presentation. He recorded that the applicant was evasive and abrupt in his responses during the initial section of the interview and, elsewhere, that the applicant was guarded and cautious during the interview.  He concluded that the applicant had presented with a cluster of symptoms consistent with post-traumatic stress disorder and secondary depression.  The intensity of the symptoms appeared to have diminished over time.  The severity and frequency of the trauma symptoms diminished over the five years since the event.

 

The current presentation, as it was made to the psychologist, indicated ongoing feelings of traumatisation, violation of dignity and personal integrity. Further treatment was recommended.

 

The applicant claims compensation under three items in the schedule to the Act.  Item number 1, bruising and laceration, minor to moderate, where it is submitted an award of 3 percent of the limit should be made.  I accept that claim and an amount of $2,250 for it is appropriate.

 

There is also a claim for facial disfigurement or bodily scarring, minor to moderate.  The range there is 2 to 10 percent and the submission is for 3 percent Again, $2,250 is, in my judgment, an appropriate amount to award under that heading.

 

The submission for mental or nervous shock is that it be rated severe and at 25 percent.  Under the Act such shock is categorised as minor, moderate or severe, minor being 2 to 10 percent; moderate, 10 to 20 percent and severe 20 to 34 percent.  I cannot accept this submission.  I am not satisfied that any post-traumatic stress disorder suffered by the applicant was greater than minor.

 

The applicant has not verified the facts on which much of the psychologist's report is based.  The reception of evidence and the weight to be given to evidence in expert reports is completely dependent upon verification of the facts which are assumed by the expert.  For the applicant, Ms Chekirova, submitted that there was no need for the applicant to testify to facts which he told to the psychologist.  The psychologist, she submitted, was a person experienced in weighing things told to him.  I reject that submission.  The task of awarding compensation is one imposed upon the Court by the relevant legislation.  It is not the task of the psychologist nor, in fairness, did Dr Hatzipetrou purport to be doing so.

 

By a small margin I am persuaded that the applicant did suffer post-traumatic stress disorder.  The evidence is fairly vague but it is, I think, just sufficient to reach that conclusion. The applicant's unexplained failure to seek any treatment, his rejection of the treatment for depression offered to him and of the psychological referral which was given to him, and the time which has elapsed since the injuries lead me to the conclusion that the disorder as suffered necessarily was minor.  I mean by minor, minor in the sense of item 31 in the schedule to the Act.  I do not mean by that to trivialise the injury.  I have no doubt that the events of that day must have been terrifying.

 

On the material before me, I therefore make an award of $14,500.  I order compensation in that sum. Before I pronounce the formal order, I should say that no question of admissibility of evidence arose in the present application.  It is a matter of the weight which should be given to the evidence which is placed before me.  When the applicant could verify, but does not verify, something which is so plainly within his own knowledge, it gives little weight, in my view, to the material.

 

The formal order of the Court will be that the respondent, NAB, pay compensation of $14,500 to the applicant because of the injury inflicted upon the applicant by him on the 4th of January 2005.

Close

Editorial Notes

  • Published Case Name:

    DAS v NAB

  • Shortened Case Name:

    DAS v NAB

  • MNC:

    [2010] QSC 234

  • Court:

    QSC

  • Judge(s):

    Fryberg J

  • Date:

    21 Jun 2010

Litigation History

No Litigation History

Appeal Status

No Status