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Hannington v Chapman

 

[2012] QSC 257

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

DELIVERED ON:

7 September 2012

DELIVERED AT:

Brisbane 

HEARING DATE:

29 August 2012

JUDGE:

Daubney J

ORDERS:

1.Pursuant to r 389(2), the applicant has leave to proceed with the application for criminal injuries compensation.

2.The respondent, Michael Tex Chapman, pay to the applicant, Travis John Hannington, the amount of $29,250 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 for injuries suffered as a result of the offence for which the respondent was convicted on 14 March 2005.

CATCHWORDS:

PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PROCEDURE UNDER UNIFORM CIVIL PROCEDURE RULES AND PREDECESSORS – TIME – DELAY SINCE LAST PROCEEDING – where the applicant commenced proceedings under the Criminal Offence Victims Act 1995 (Qld) on 2 May 2007 – where no steps have been taken in the proceeding since 25 July 2007 – where the reasons for the delay are unclear – where the applicant made numerous attempts to follow up the matter with his solicitors – where the applicant’s case was taken over by Legal Aid Queensland in March 2012 – whether leave should be granted to the applicant to proceed

CRIMINAL LAW AND PROCEDURE – JURISDICTION PRACTICE AND PROCEDURE – JUDGEMENT AND PUNISHMENT – ORDERS FOR RESTITUTION AND COMPENSATION – QUEENSLAND – where the respondent pleaded guilty to offence of malicious act with intent – where the applicant suffered injuries to his arm in the form of a large flap laceration and compound fracture – where the applicant suffered injuries to his mental health in the form of chronic Post Traumatic Stress Disorder - where the applicant commenced the application for compensation prior to the commencement of the Victims of Crime Assistance Act 2009 (Qld) – where the applicant seeks criminal compensation for injuries sustained pursuant to the Criminal Offence Victims Act 1995 (Qld) – whether the applicant is entitled to criminal injuries compensation

Criminal Offence Victims Act  1995 (Qld), s 22, 24, 25

Uniform Civil Procedure Rules 1999 (Qld) r 389(2)

Victims of Crime Assistance Act 2009 (qld), s167

Hohn v King [2004] QCA 254, applied

R v Bennett; ex parte Facer [2002] 2 Qd R 395; [2001] QCA 395, cited

SAY v AZ ; ex parte A-G (Qld) [2006] QCA 462, cited

COUNSEL:

S J Hamlyn Harris for the applicant

No appearance for the respondent

SOLICITORS:

Legal Aid Queensland for the applicant

No appearance for the respondent

[1] This is an application for compensation under s 24 of the Criminal Offence Victims Act 1995 (“COVA”) for injuries suffered by the applicant as a result of the respondent committing on him the offence of doing a malicious act with intent.[1] 

[2] The offence occurred on 9 February 2004.  On 14 March 2005, the respondent pleaded guilty before Mackenzie J to the offence of doing a malicious act with intent.  On 17 March 2005, the respondent was sentenced by Mackenzie J to six years’ imprisonment, with a recommendation that he be eligible for post-prison community-based release after two years. 

[3] On 2 May 2007, the present application was filed.  It had a return date of 12 June 2007.  The respondent had not been served by that date, and the application was adjourned on the papers to 15 August 2007.  On 25 July 2007, the respondent was personally served with the application.

[4] On 30 June 2012, the respondent was again personally served with the application, together with all material filed in support of the application and a letter from Legal Aid Queensland (“LAQ”) advising him that the application was listed for hearing in the Supreme Court at Brisbane on 29 August 2012.  The respondent has not filed an address for service. 

Leave to proceed

[5] No step in the proceeding has been taken since 25 July 2007, when the respondent was personally served with the application and supporting material.  Accordingly, UCPR r 389(2) operates such that, in order to proceed with the application, the applicant requires the leave of the Court.

[6] The material is a little sketchy in relation to the reasons for delay.  The applicant was originally represented by a firm of solicitors.  That firm filed the present application in 2007.  There was an adjournment to enable the respondent to be served.  That occurred, but it is not clear why the hearing did not proceed on 15 August 2007.  The only reasonable inference is that it was adjourned from then to a date to be fixed.  In any event, in April 2010 that same firm of solicitors brought an application before Fryberg J for leave to proceed under r 389(2) and also for substituted service.  Again, it appears that no orders were made on those applications.  An affidavit filed by the applicant’s then solicitor in support of the 2010 application deposed to the fact that the particular solicitor in the firm who had previously had conduct of the matter on behalf of the applicant was no longer in the firm’s employ and to the best of the deponent’s knowledge was residing in Korea.  The solicitor said that the file “was recently noticed as not active”.

[7] No further action appears to have been taken by that firm of solicitors.

[8] In his affidavit filed on 4 June 2012 in support of the present application, the applicant said:

“Some time in 2010 I was told that Mr Johnstone was only going to do family law.  My file was transferred to Andrew Bui, Benson Lawyers.  I think this [sic] around July/August 2010.  I tried repeatedly to find out what was happening with my file but was unable to get anywhere with Andrew Bui.  He told me he was waiting for hospital appointments.  He did not return my calls and did not seem to do any work on my files.  I was very concerned about my case and went to talk to him on several occasions.”

[9] Benson Lawyers did not file a notice of address for service or any supporting material.

[10] In March 2012, the applicant’s case was taken on by LAQ.  A notice of change of solicitor was filed in the Registry on 27 March 2012.  I should record that it is clear that LAQ has done its best in the intervening period to investigate the background and to make up for the time which was unfortunately lost. 

[11] The respondent was given one month’s notice of the applicant’s intention to proceed, in compliance with r 389(1). 

[12] Despite having been given that notice of intention to proceed and notice of the applicant’s intention to pursue the application on 29 August 2012, the respondent did not appear at the hearing.

[13] The applicant has a patent statutory claim against the respondent.  His application for criminal compensation was commenced in a relatively timely fashion after the conviction of the respondent.  It is true that there have been periods of delay, but I am satisfied, on the material before me, that these periods of delay are in no way attributable to the applicant personally.  Unfortunately, it would seem that, until he was taken under the wing of LAQ, his previous lawyers were dilatory in their pursuit of the application.  The respondent did not appear on the hearing, and therefore no submissions were made to me on his behalf with respect to possible prejudice.  It is, however, difficult to see how any sensible submission could be made to the effect that the respondent has suffered prejudice as a result of the delay.  This is an application for criminal injuries compensation, in which “the judge should take a view of the evidence consistent with that taken at sentencing”.[2]  This highlights the unlikelihood of a successful submission that the delay has caused prejudice to the respondent on the issue of his liability to pay compensation for injuries properly attributed to the offence he committed.

[14] Having regard to the fact that the Court’s discretion under r 389(2) is not fettered by rigid rules, but also having regard to the factors which ought properly be taken into account on such an application,[3] I am satisfied that this is an appropriate case for the grant of leave to proceed. 

[15] I turn then to the substantive application.

Background

[16] At the time of the offence, the applicant was 20 years of age, and the respondent was 44. At sentence, the Crown Prosecutor told Mackenzie J that the applicant’s mother was the then de facto of the respondent, and the applicant had known the respondent for most of his life and called him Uncle Michael as a sign of respect. 

[17] The action involved in the offending was as follows.  Essentially, the applicant raised his arm in a defensive motion during an argument with the respondent over a Play Station, and was slashed across the elbow with the bush knife (which appears to resemble a curved machete) held by the respondent, causing a large flap laceration and associated compound fracture of the proximal ulna.

[18] In his sentencing remarks , Mackenzie J described the offence as follows:

“…The facts of the matter in broad detail are that the complainant had for a couple of weeks been staying at the house where you were living at the time with the complainant’s mother.

During the afternoon, a disagreement broke out between you and the complainant about his entitlement to be in his brother’s room where there was a Play Station.  It is quite apparent from the material placed before me that there had been a history of the complainant tormenting his brothers over the use of the Play Station which had caused considerable aggravation in the household.

The complainant kept asserting a right to be there in the face of your demands that he get out.  As the argument escalated, you got a baseball bat which you held beside your leg while you were continuing to demand the complainant get of the room.  You were persuaded by the complainant’s mother to give the baseball bat to her and the argument continued.

It is not entirely clear what the authentic version of events is but it is plain that there was verbal confrontations between you and the complainant and that at some point, you went downstairs and returned with a brush hook which was sharp for the purpose of cutting wood to use an Aboriginal artefacts [sic].

In any event, the version that seems to be placed before me as the most likely is that you got the brush hook and when you came back to the bedroom, there was another confrontation which is best described as an “in your face” confrontation, in the course of which you were pushed.  Then, although the circumstances are not entirely clear as to how long elapsed, you hit or swung at the complainant with the brush hook.  He raised his arms and suffered a defensive type wound to the left elbow.”

Assessment under the Criminal Offence Victims Act 1995

[19] I am satisfied that the applicant suffered an injury[4] as a result of a personal offence[5] and is entitled to seek compensation for the effects of that injury pursuant to s 24 of the COVA.  Pursuant to s 25 of the COVA, the Court is limited to ordering not more than the scheme maximum of $75,000.  Compensation is assessed by comparing the injuries suffered to the injuries listed in the compensation table contained in the Act.  It is also to be noted that, under s 22 of the COVA, the compensation ordered by the Court is not meant to reflect the amount of compensation to which the applicant would be entitled under the common law.  Moreover, the maximum is reserved for the most serious of cases. 

[20] By s 25(7) of the COVA, the Court is required to have regard to, amongst things, “any behaviour of the applicant that directly or indirectly contributed to the injury”.  In Hohn v King,[6] Atkinson J said:

“[105]In deciding whether or not a victim of crime should have his or her compensation reduced or refused pursuant to s 25(7) of COVA, the judge assessing the compensation should pay close regard to the circumstances of the particular offence and exercise his or her discretion judicially.  Factors relevant to the discretion under s 25(7) are likely to include, but are not limited to:

(1) whether or not the victim was committing an offence at the time of his or her injury;

(2)whether any such offence committed by the victim involved personal violence to the offender or another;

(3)whether the victim offered violence to the offender or another before, during or after the offence;

(4)whether the victim was armed or used a weapon;

(5)whether the victim was injured by a co-offender in the course of committing a crime or a violent crime;

(6)whether the offender responded with more force than was justified for self-defence;

(7)whether the victim offered provocation to the offender;

(8)any differences in size, strength and power between the victim and the offender;

(9)whether the violence used by the offender was disproportionate to any violence offered by the victim.

[106]It is only in the most unusual case that a victim of a crime of personal violence should be denied compensation altogether.  It would suggest that a high degree of culpability for the offence lies on the victim rather than merely on the offender.”

[21] Counsel for the applicant made submissions in respect of matters which the Court might consider relevant when considering whether there ought be any reduction of compensation in the present case.  The following factors were highlighted:

(a)The applicant had for a couple of weeks been staying at the house where the respondent was living with the applicant’s mother;

(b)During the afternoon of the incident, a disagreement broke out between the respondent and the applicant about his entitlement to be in his brother’s room where there was a Play Station;

(c)There had been a history of the applicant tormenting his brothers over the use of the Play Station, which had caused considerable aggravation in the household;

(d)The applicant kept asserting a right to be there in the face of the respondent’s demands that he get out;

(e)The argument escalated, in the course of which the respondent retrieved a baseball bat which he held beside his leg while continuing to demand the applicant get out of the room;

(f)The applicant’s mother persuaded the respondent to give her the baseball bat and the argument continued;

(g)The respondent then approached the applicant carrying a brush hook knife.  He then inflicted the subject injuries on the applicant;

(h)In his sentencing remarks, Mackenzie J said:

“The case is one where the confrontation that occurred escalated in a way that resulted in the brush hook being swung and causing grievous bodily harm.  It is accepted that you [the respondent] had an intent to seriously injure the complainant [the applicant] at that point that you swung the brush hook.  It is therefore a serious offence but it seems to me that it is not one which, in the particular circumstances calls for a declaration that the offence is a serious violent offence.  It is really a case where you lost control of yourself very seriously in the face of provocative and no doubt demeaning behaviour of the complainant [the applicant].

Your voluntary surrender of the baseball bat suggests that the weapons may have really been intended more to imply the use of force than to actually use it.”

[22] Having had regard to those matters, which were properly put before me by counsel for the applicant, I am not satisfied that this is a case in which the award of compensation under the COVA should be reduced by reason of the applicant’s behaviour.  In particular, having regard to the circumstances of the offending and the suffering of the injuries, and also giving full weight to the observations of the learned sentencing judge, I consider that the action of the respondent was so greatly disproportionate to the applicant’s conduct that no diminution of the award of compensation is warranted as a consequence of “any behaviour of the applicant that directly or indirectly contributed to the injury”.

Other contributing factors

[23] In conducting an assessment under the COVA, the Court must also necessarily have regard to the issue of causation, and in particular take account of whether an award ought be discounted to take account of other factors which caused or contributed to the suffering of the injuries.[7] 

[24] The applicant is suffering from post-traumatic stress disorder. 

[25] Whilst it is clear on the evidence that this post-traumatic stress disorder was largely caused or contributed to by the subject events, it is also evident, on the expert evidence of the psychiatrists Dr McGuire and Dr Prior (to whose reports I will refer shortly), that there have been other contributing factors to the applicant’s mental disorder.  On any view, however, those other contributing factors were minor in comparison with the effect of the subject incident.  The most recent opinion, which is by Dr Prior, stated:

“I consider that the primary factor which has resulted in the post-traumatic stress disorder is the assault of the 9th of February 2004.  I consider that the impact of the Cannabis Abuse on his current presentation is minor, that is about 10% of his ongoing impairment.  Therefore his current presentation is mostly due to the effects of the assault, being 90% of the total impairment.”

[26] The subject incident made a significant and material contribution to the post-traumatic stress disorder from which the applicant is suffering.  I will, however, take account of a small contribution by other factors when determining the relevant item in the Schedule to which regard should be had for the purposes of assessing the compensation. 

Quantum

[27] For the purposes of assessing quantum, the following medical reports and information were in evidence before me:

1. statements by the doctors who treated the applicant after the incident and records from the Princess Alexandra Hospital

2. report from Dr Barbara McGuire, Psychiatrist, dated 25 May 2006

3. report from Dr Trevor Harris, Plastic and Reconstructive Surgeon, dated 23 April 2012

4. report from Dr Lloyd Toft, Orthopaedic Surgeon, dated 30 April 2012

5. report from Dr Nigel Prior, Psychiatrist, dated 26 April 2012

6. several affidavits by the applicant; in particular, an affidavit filed on 4 June 2012  in which the applicant recounts his personal history and the effects of the injuries on him.

[28] Mackenzie J described the injuries suffered by the applicant as follows:

 “There was a severe laceration to the elbow associate with a compound fracture of the elbow, which fortunately seems to have healed satisfactorily.  The wound was consistent with his being struck with a sharp object from the left side while his arm was raised in a defensive pose.

It was grievous bodily harm because if left untreated, it would endanger life because of haemorrhage and risk of infection and sepsis and perhaps the possibility of residual difficulties, although there are no present residual injuries or disabilities.”

[29] Dr Trevor Gervais, one of the treating doctors at the Princess Alexandra Hospital recorded the applicant’s injuries as follows:

“I attended Travis Hannington on 9 February 2004.  He gave a history of being assaulted by an attacker using a bush knife.  He had sustained a large flap laceration over the elbow with associated compound fracture of the proximal ulna.  He was taken to theatre on 9 February 2004 for a washout of the wound.  He was found to have a 6cm circular flap of skin with underlying triceps attachment and a strip of bone from the posterior aspect of the ulna.  Following thorough irrigation and debridement the fractured segment was reduced and held with two screws.  The skin was closed with nylon sutures.  He was placed in a slab and continued on IV antibiotics until discharge on 11 February 2004.

He was followed up in the orthopaedic outpatient clinic.  His wounds healed up without difficulty.  He commenced a course of physiotherapy to gain range of movement of his elbow joint.

If left untreated this injury would have posed a significant rick of infection and would have resulted in reduced range of movement of his elbow joint.  His wound is consistent with having had his arm elevated in a defensive position.”

[30] Another attending physician at the Princess Alexandra Hospital, Dr Andrew Scott Cartmill, stated:

“I attended the above at the Princess Alexandra Hospital on 9 February 2004.  He was admitted to the hospital on 9 February 2004.  He presented with a history of being attacked by a person with a brush cutting blade.  Upon examination the patient was noted to have sustained a severe laceration to his left elbow with associated compound fracture of the olecranon process of his ulna and apparent involvement of his triceps tendon.  The neurovascular supply to his distal arm was not compromised.  There was active bleeding from small arterioles requiring ligation to control bleeding.

A plain x-ray of his left elbow was performed which confirmed the compound fracture of his proximal ulna. No foreign bodies were identified.  Tetanus toxin was administered and he was commenced on intravenous antibiotics.  He was given 10mg morphine intravenously and 10mls of 1% lignocaine with adrenaline locally to control pain prior to inspection and management of the wound.  Given the patient’s age, size and degree of pain, this dose did not hinder his ability to provide a clear history of his alleged attack.  He was completely alert and oriented throughout his management in the emergency department and was able to converse with police officers when attended and provide informed consent for his pending surgery.

The patient underwent irrigation and debridement of his wound and the bone fragment was internally fixated.  He was admitted to the orthopaedic ward for analgesia, antibiotics and observation.  He was discharged from hospital on 11 February 2004.

The injury is consistent with being struck by a sharp object from his left side with his arm raised across his body in a defensive pose.”

[31] Dr Lloyd Toft, who examined the applicant on 26 April 2012, expressed the following opinion:

OPINION AND ASSESSMENT

The injuries suffered by Mr. Hannington would be consistent with the description of the incident. He has been treated appropriately. The injury has healed without any complications such as infection.

Currently Mr. Hannington reports some pain in the elbow with repetitive heavy usage. He is aware of an area of numbness on the back of the elbow within the area of the scarring. He is not aware of any restriction of movement or any functional restriction for normal daily activities.

On examination he has full movement in the left elbow. He has a well healed scar with associated numbness.

The imaging studies show that the fracture of the ulna has united in anatomical position. There is no evidence of any intra-articular abnormality.

Based on the clinical findings, apart from the area of skin numbness and the scarring, Mr. Hannington would have no assessable impairment of the left upper extremity resulting from any loss of movement or weakness.

Whilst the area of numbness causes Mr. Hannington a mild degree of disability, it would not be of sufficient area to warrant an impairment rating.

Mr. Hannington's scar is well healed. It could be described as moderate linear scarring crossing lines of election with minimal discolouration, normal texture and elevation. On that basis, I would rate it as a 1% whole person impairment (see QComp Table of Injuries).

Treatment

Mr. Hannington requires no treatment for any injuries suffered in the subject accident. The screws in the proximal ulna are well seated and whilst slightly prominent, they are not causing any functional disability. Surgical removal at this time would not be indicated.

Prognosis

Mr. Hannington has not suffered any injuries in the subject accident which will cause any future deterioration or complications or requirement for treatment. However the area of numbness would be easily traumatised and he would need to be careful not to injure this area.

Occupation

Mr Hannington has not suffered any injuries in the subject accident which would prevent him from undertaking any form of occupation for which he may otherwise be suitable.

Activities of Daily Living

Mr. Hannington has not suffered any injuries in the subject accident which would require him to have external assistance with some activities.

Sports, Recreation and Leisure Activities

It will be advisable for Mr. Hannington to not return to rugby league football. Abrasions to the back of the upper forearm are a common injury and the area of numbness would make Mr, Hannington much more prone to such an injury with associated complications such as infection.”

[32] Dr Harris examined the applicant on 23 April 2012, and said in his report:

On examination by me on the above date his scarring is as follows:

Outer End of the Left Eyebrow

1.There are several small scars in this region, but he has received an injury over many years to this area on five occasions, and he doubts whether any of these scars are due to the present circumstances.

The Left Elbow 

2.There is a scar commencing lateral to the point of the elbow, coursing downwards in circular fashion onto the upper forearm, and then upwards to end medial to the point of the left elbow. This scar is 15cm in length and quite a reasonable scar. The two screws that were inserted into the bony fragment are palpable through the skin. Otherwise, the area is not causing any concern.

Summary

The scar of the left elbow has been described in detail. This is consistent with having been sustained with a sharp instrument, and has been surgically repaired.

He states that there is numbness in the region of the scar and a small area below this on the posterior left forearm.

I do not consider that any further surgery is indicated in relation to the scarring. The scar is permanent and could not be improved by surgical excision and repair.

I do not consider that the scarring is affecting your client's day-to-day life or any activities he undertakes.

The scar is not in a cosmetically prominent position, and is unlikely to affect his day-to-day life and outlook on life.

Using the AMA Guides to the Evaluation of Permanent Impairment 5th Edition, Table 8-2, Class I, my estimate of the impairment of the whole person due to the scar is 5%.

There is cutaneous scarring, with few limitations in performance of activities of daily living, and the scar requires no treatment.

No other treatment is indicated for the scar. The orthopaedic surgeons may consider removal of the two screws.”

Mental and Nervous Shock

[33] Dr Barbara McGuire interviewed the applicant on 15 May 2006.  In her report Dr McGuire said that the applicant was suffering from Post Traumatic Stress Disorder as a result of the offence.  She was of the opinion that the applicant’s symptoms would attenuate but that the condition may be present for some years. In her opinion that disorder was moderate and at the time of the report the applicant’s condition was considered stable.

[34] Dr McGuire said in her report:

THE EFFECTS OF THE INCIDENT

He is unable to play sport because of his protective feeling about his elbow, He had been very good at football and had played for 4 years at a club level, He has nightmares about 3 a month after which he wakes screaming. The nightmares are always of the incident. He has had about 4 flashbacks since the incident occurred. They were very real and took the form of his re-experiencing the incident. The last one occurred in March 2006. He said he has great difficulty talking of the incident. He has discussed it with his family but has problems talking about his feelings.

He has some sleep disturbance. He wakes frequently because of difficulties with positioning his arm. He feels insecure, has problems going out on the street and is hypervigilant with an exaggerated startle reflex. He described himself as feeling on edge. If he sees someone playing with knives he gets upset. He does not blame himself and attributes the incident to the fact that Chapman had been addicted to amphetamines and marijuana and hadn't had any for 3 days. He was very aggressive. He had in the past been abusive to his mother and Travis had been protective of her. After the incident Chapman sent a letter to Travis's mother saying that his family were going to attack Travis in the street.

He said he had been fond of Chapman and when he was a boy had been quite close to him. He described clearing some bushland with him at Stradbroke Island with the intention of building a common property for his mother and Chapman's partner at the time. He said that when he saw him in Court he ran away and hid his face and felt very frightened of him. He constantly checks security and when Chapman is eligible for parole this will make him feel much worse.

He said that recently he got into a fight with his sister's boyfriend who had hit him and his mother was then very defensive of him. She now regrets defending Chapman.

He said that he has changed in his personality. He is quieter than usual, constantly flinches. He has only worked for 2 weeks since the incident and that was a job lifting plants and he feared damaging his elbow. He said he would be fearful if he lived alone and he is constantly worded that Chapman will seek revenge on him.

He said he is more irritable than before. He was suicidal just after the offence and fashioned a noose but didn't do anything about it. This was because of his estrangement from his mother.”

[35] Dr McGuire’s report concluded as follows:

GENERAL MATTERS

a)The effect of the offences upon our client as they occurred: At the time of the incident he felt terrified and thought he was going to be killed.

b)The immediate after effects of the offences: He thought he might lose his arm after the incident and experienced pain. He said that he noted incidents had a 'dreamlike quality' after it.

c)The impact of the incidents upon the family/social/relationship aspects of client's life: He didn't talk to his mother for 6 months and eventually reconciled with he~ when she got rid of the boyfriend. There was no change in his relationship to friends who have been~ supportive of him.

d)The effect of the incidents in respect of client's outlook on life in general: He believes the world is a much more dangerous place than he had before.

e) The possible need for further counselling and an estimate of the duration of any future counselling: He hasn't had counselling because he can't talk about it.”

[36] Dr Nigel Prior examined the applicant on 18 April 2012.  In his report Dr Prior said that the applicant shows evidence of a Post Traumatic Stress Disorder which is now chronic.  Dr Prior was of the view that this condition was initially of moderate severity but now is of minor severity and that the applicant’s condition has settled over time with no treatment.  Dr Prior said that the applicant also has a pre-existing disorder of Cannabis Abuse which initially escalated in the aftermath of the assault but now has reduced to below his premorbid levels of abuse. Dr Prior thought that the Cannabis Abuse is likely to have aggravated his Post Traumatic Stress Disorder in the immediate aftermath of the assault and it may also currently be acting to perpetuate the PTSD.  Dr Prior noted that it is likely that the conditions of both the PTSD and Cannabis Abuse, which both have now become chronic, will persist into the future.  Dr Prior said that the applicant shows little motivation to cease his use of cannabis.

[37] Dr Prior said:

 “15.4General Matters to be included in the report

We request that you also address in particular the following points as well as making any other observations you consider relevant

a.The effect of the offence upon our client as it occurred

b.The immediate after-effects of the offence

c.The impact of the incident upon the family/social/relationship aspects of our client's life

d.The effect of the incident in respect of our client’s outlook on life in general

e.The possible need further counselling, an estimate of the duration of duration of any future counselling and

f.An estimate of the costs of this counselling

15.4.1The effects of the offence upon Mr Hannington as it occurred are that he incurred a laceration to his left elbow and a compound fracture of the olecranon process of his ulnar. He required surgical treatment and physiotherapy in the aftermath. Psychologically he feared that he would be killed in the course of the assault.

15.4.2The immediate after-effects of the offence were that Mr Hannington required surgery to his arm and physiotherapy. He reported that he has been left with some scarring and residual throbbing in his arm particularly on cold days and if he does heavy lifting. Psychologically he began to experience nightmares, flashbacks, anxiety, avoidance behaviour, depression, neurovegetative disturbance, hyperarousal and hypervigilance, irritability and problems with concentration. He showed evidence of a moderate Post Traumatic Stress Disorder. He also experienced escalation in his pre-existing Cannabis Abuse problem to significant levels.

15.4.3The impact of the incident upon the family, social and relationship aspects of Mr Hannington's life particularly relate to the disruption of his relationship with his mother. She harboured Chapman in the aftermath of the assault. She clearly favoured Chapman over her son's welfare. This caused significant estrangement for about 10 months in the aftermath. This has continued to sour his relationship with his mother and he remains distanced from her. He has been able to continue his relationship with his partner Michelle. This has persisted for the past eight years and he stays with her intermittently. He reports that socially his anxiety levels cause him to be wary of male aboriginals and particularly around drunken aboriginals. He is also more sensitive to threats from others and this has resulted in him being shorter fused and on one occasion being charged with assault.

15.4.4The effect of the incident with respect to Mr Hannington's outlook on life in general is that he still remains positive about life and is happy to be alive. He is angry with Chapman and considers him to be "scum". He is angry with his mother for prioritising Chapman over his needs.

15.4.5Mr Hannington does not require any further counselling. His PTSD condition has mostly settled with time. He has minimal symptoms and I do not consider will get any benefit from active treatment. He has not sought treatment as he has preferred not to talk about the incident.

15.4.6Consequently there no costs associated with his counselling. However I do consider that he would benefit from referral to an ATODS Clinic in the public health system for assistance with cessation of this Cannabis Abuse This treatment is available at no cost to Mr Hannington.”

[38] On the basis of the specialist medical evidence, and also having regard to the applicant’s reporting of the effects of the injuries suffered, I am of the view that the following are the appropriate heads of compensation for the applicant.

[39] ITEM 16  Fracture/Loss of use of arm/wrist (displaced immobilised) (Range 8% to 30%) – I assess this item at 12% (which, having regard to the scheme maximum, yields $9,000).  This assessment takes account of the nature of the injuries suffered and the treatement at the time, and also Dr Toft’s opinion that based on the clinical findings, apart from the area of skin numbness and the scarring, the applicant would have no assessable impairment of the left upper extremity resulting from any loss of movement or weakness.

[40] ITEM 27 Facial Disfigurement or bodily scarring (minor/moderate) (Range 2% to 10%) - I assess this item at 7% (which, having regard to the scheme maximum, yields $5,250).  It is a large scar, but is not in a cosmetically prominent position.  Nor is it likely to interfere with the applicant’s activities.  It is closer to the “moderate” than the “minor” end of the scale.

[41] ITEM 32 Mental or nervous shock (moderate) (Range 10% to 20%) – I assess this item at 20% (which, having regard to the scheme maximum, yields $15,000).  This assessment takes account of the fact that the applicant now suffers chronic Post Traumatic Stress Disorder, which was initially of moderate severity, but has since abated somewhat, and also takes account of the minor contribution of other factors to the condition.  These matters notwithstanding, the applicant’s condition, assessed overall, is placed at the top end of this item.

[42] I therefore assess the amount recoverable by the applicant as compensation under the COVA in the total amount of $29,250.

Conclusion

[43] There will be the following orders:

1.Pursuant to r 389(2), the applicant has leave to proceed with the application for criminal injuries compensation.

2.The respondent, Michael Tex Chapman, pay to the applicant Travis John Hannington the amount of $29,250 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 for injuries suffered as a result of the offence for which the respondent was convicted on 14 March 2005.

Footnotes

[1] The Criminal Offence Victims Act 1995 was repealed by the Victims of Crime Assistance Act 2009. As the present application was filed before the commencement of the Victims of Crime Assistance Act 2009 (on 1 December 2009), s 167 of the latter Act preserves the present application.

[2] R v Bennett; ex parte Facer [2002] 2 Qd R 395, per Philippides J at 300.

[3] As to which, see Tyler v Custom Credit Corp Ltd [2000] QCA 178.

[4] As defined in s 20.

[5] As defined in s 21.

[6] [2004] QCA 254.

[7] See SAY v AZ; ex parte A-G (Qld) [2006] QCA 462, per Holmes JA at [22] – [23].

Close

Editorial Notes

  • Published Case Name:

    Hannington v Chapman

  • Shortened Case Name:

    Hannington v Chapman

  • MNC:

    [2012] QSC 257

  • Court:

    QSC

  • Judge(s):

    Daubney J

  • Date:

    07 Sep 2012

Litigation History

No Litigation History

Appeal Status

No Status