Hockley v Sowden[2000] QCA 9

THOMAS JA:  This is an application for leave to appeal against a decision in the District Court which awarded the applicant $5,625 by way of criminal compensation.  It is alleged that the award is inadequate.  The amount involved is not sufficient to satisfy the requirements of section 118, subsection 2, of The District Courts Act 1967.  In order to bring an appeal the applicant requires the leave of this Court under section 118, subsection 3.

The proceedings stem from an incident on 28 December 1995 when the respondent assaulted the applicant.  This resulted in his conviction of common assault on 29 July 1997.  He was released upon a recognisance of $7,500 on condition that he be of good behaviour and appear for conviction and sentence if called on at any time during the following three years.  No conviction was recorded.

The applicant delayed in seeing a solicitor in relation to criminal compensation and the present claim was not brought before the Court until 2 November 1999.  No physical injury was inflicted upon the applicant.  His claim is based entirely upon a stress disorder following the incident.

The proceedings were determined under The Criminal Offence Victims Act 1995.  The remedy conferred by this Act is in addition to any remedy under common law (section 22).  Provision is made for ex gratia payments to be made by the State in respect of any amounts awarded.  The amount to be awarded is governed by various provisions in the Act.  It is assessed upon principles different from those of the common law.  Indeed, under s 22(3),

 "Compensation provided to an application under this part is intended to help the application and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise."

Furthermore, under s 22(4) the maximum amount of compensation provided under this part is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.

Under s 25(8), it is expressly stated that a decision on the amount that should be ordered does not involve applying principles used to decide common law damages for personal injuries.  Such proceedings are civil and are to be decided on the balance of probabilities (ss 30(1) and 30(2)).  The rules of evidence do not apply and the Court may receive information in any form it considers appropriate (s 30(3)).

For example the transcript of proceedings on sentence may be  received as it was in the present case.  It contains factual statements from both sides of the Bar table including the respondent's version of the incident.

The amount to be awarded is governed inter alia by section 25.  I quote subsections 1 and 2:

 "(1) In making a compensation order, the Court is limited to ordering the payment of an amount decided under this section.

  (2) A compensation order may only order the payment to the applicant of a total amount of not more than the prescribed amount (the 'scheme maximum')."

The prescribed maximum amount at the time of hearing and now is $75,000.  The compensation table scheduled to the Act in combination with s 25(4) limits the amount for injuries of prescribed kinds according to the percentages listed, that is to say to a stated percentage of the scheme maximum.  The schedule contains three references to mental or nervous shock, namely:

 "31.  Mental or nervous shock (minor)    ..   2% - 10%

 32.  Mental or nervous shock (moderate) ..  10% - 20%

 33.  Mental or nervous shock (severe)   ..  20% - 34%"

It follows that the maximum amount that could have been awarded on the present application if the Court had been of the view that the applicant suffered severe nervous shock was 34 per cent of $75,000, namely $25,500.  The learned trial Judge's conclusion, however, was that the injury should be assessed at the mid-point of the moderate range, namely at the percentage of 15 per cent.  This would have produced an award of $11,250. 

However, His Honour went on to discount that by 50 per cent because the applicant had directly or indirectly contributed to the injury.  His Honour was obliged to take such a factor into account by s 25(7) which provides:

 "In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury."

It is enough to say that there was sufficient evidence to support His Honour's view that the behaviour of the applicant had contributed to the injury.  It is apparent from the material that the applicant went to the respondent's house with two other persons, Hernandez and Verco, who had on a number of previous occasions, including on that very day, engaged in aggressive behaviour toward the respondent and his son.  The three visitors, including the applicant, were clearly told to leave and they were trespassers.  The applicant had driven his vehicle uninvited by the respondent inside the respondent's premises and chose to remain there and to argue with the respondent after the respondent had already damaged the headlights of the applicant's vehicle and made it quite clear that he wanted them to leave.  All three were dressed in what was described as "rough clothing".  The respondent had already phoned the police before confronting the three men who had come to his property.

I share the learned Judge's scepticism in relation to what the applicant believed was the significance or purpose of his visit with Hernandez and Verco, but note that His Honour correctly refrained from making any positive finding on this issue.  Even so, the applicant's presence in the situation described and his failure promptly to withdraw upon being asked to leave give justification for a finding that the behaviour of the applicant contributed to the injury.

Once this is realised the applicant's complaints come down to submissions that the initial quantum should have been assessed as severe nervous shock rather than moderate nervous shock and that the reduction made under s 25(7) for contributing behaviour was too generous to the respondent. 

These are essentially discretionary areas (see s 24(3)).  Such issues are ones upon which different minds may understandably form different impressions.  Such an area is not a favourable one for a grant of leave to appeal.

Mr Kimmins, for the applicant, submitted that leave should be granted to appeal as the case raises questions concerning the proper assessment of damages for criminal compensation and, in particular, the proper apportionment where contributory behaviour is found.  There is, however, no ambiguity or perceived difficulty in the application of section 25, subsection 7, or any need for this Court to present an excursus as to the way in which the section is to be applied.  There was nothing wrong in principle in the learned Judge's decision to reduce the amount to be awarded having found that the applicant's behaviour contributed to the injury.

In cases like this where there is no physical injury the appropriate award is very much affected by the impression obtained by the trial Judge who in this instance it may be noted was also the sentencing Judge. 

It is unnecessary to discuss in detail other matters raised in the written arguments such as the effect of delay on the applicant's part in consulting a psychiatrist and in turn in bringing the present proceedings.  The psychiatrist, upon whose evidence the applicant relied, expressed the view that if the applicant had had immediate psychiatric treatment his condition would have lasted only two to three years.  At the time of her examination of the applicant and writing of her report, 10 May 1999, she estimated that another two years of treatment might be appropriate or useful.  The learned Judge did not make any particular reduction of the award under

s 25(7) of the Act on this account, but it is relevant to note that these circumstances tend to support His Honour's assessment at the moderate rather than the severe level of nervous shock. 

In my view this is not a suitable matter for the grant of leave to appeal.

PINCUS JA:  I agree that the application should be refused.  Parliament has made an attempt to prescribe for criminal compensation matters a more fully explained scheme than previously existed.  Perhaps in future some obscurity in these provisions will be identified which requires to be cleared up.  None is identified in the present case.

There was no specific question of law raised, in my view, nor any reason to think that the result below was so unjust as to require this Court's intervention.  The order should be, as I have said, one to refuse leave.

McPHERSON JA:  I agree.  This matter, to my mind, raises no such question or issue either of fact or law as would justify or invite consideration by this Court of this question on appeal.  I would refuse the application.

PINCUS JA:  The application for leave is dismissed. 

...

PINCUS JA:  The Court is of the opinion that the applicant pay the respondent's costs fixed at $900.

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