Harman v Horne[2001] QCA 349

COURT OF APPEAL

McMURDO P

WILLIAMS JA

HOLMES J

BRISBANE

DATE 20/08/2001

JUDGMENT

THE PRESIDENT:  The applicant, a police officer, was injured when arresting the respondent on 23 July 1999.  The respondent was convicted on two counts of serious assault.  On 9 November 2000 the applicant brought an application for criminal compensation in the District Court for injuries received during the commission of the offences under the Criminal Offences Victims Act 1995.  The applicant seeks leave to appeal from the decision of the District Court Judge awarding damages. 

The application was filed on 20 December 2000 and is therefore about 11 days out of time.  Affidavit material filed on behalf of the applicant demonstrates that the applicant instructed his solicitors to file the appeal well within time, but through error or inadvertence on the part of the applicant's solicitors or their town agents the application was filed late.  If leave were to be given the applicant proposes to argue as his grounds of appeal that the learned primary Judge erred in assessing the injuries as minor and that the quantum assessed was inadequate.

The applicant was bitten twice by the respondent during the incident, first on the back of his right hand and second on the left leg.  The respondent also struck him on the upper body several times and grabbed and squeezed his testicles.

The applicant was examined at the Mater Private Hospital where it was noted he suffered a bruise of the dorsum of the right thenar eminence consistent with a bite, a bruise over the right side of his chin and an obvious bite mark over his left inside thigh just above his knee.  In none of these injuries was the true skin broken.  The applicant became aware that the respondent was an intravenous heroin user and was said to be suffering from hepatitis C and HIV. 

Psychiatrist, Dr Lillian Cameron, examined the applicant on 3 March 2000 and diagnosed him to be suffering from a severe chronic post traumatic stress disorder following this incident.  The applicant was seriously concerned he had been infected with a life-threatening disease and was distressed by the public nature of the incident.

His prognoses now is good because he is satisfied that he has not contracted HIV or other serious illness through the biting.  Dr Cameron recommended initial weekly interviews and later monthly interviews over a six month period to allow the applicant to ventilate his feelings about the incident because he is still very bitter and angry.  The respondent, without any explanation on his part, has not availed himself of any such counselling.  This does not suggest the applicant has himself seen a great need for treatment of this sort.  Because of his concern about working in public, in October 1999 the applicant was internally transferred to watch-house police work to which he appears to have adapted satisfactorily. 

The applicant deposed that the incident occurred three months before his marriage.  He had blood tests immediately after the attack and then again three months later.  Only then was he satisfied that he had not contracted any serious illnesses because of the biting.  The incident, therefore, clouded his otherwise happy engagement period, wedding day and honeymoon.

The learned primary Judge referred to the principles stated in section 22(3) Criminal Offence Victims Act 1995 and considered the bruising and mental nervous shock as both within the minor category.  Minor to moderate bruising or laceration allows for an award of one to three per cent of the scheme maximum.  His Honour assessed this amount at one per cent, $750. 

Minor, mental or nervous shock is covered by an award of between two and 10 per cent under the scheme.  His Honour allowed an award of 5 per cent, $3,750 and ordered that the respondent pay the applicant the sum of $4,500 by way of criminal compensation for the injury received by the applicant as a result of the two offences of serious assault on which the respondent was convicted.

The applicant refers to a line of criminal cases which required jurors to accept unchallenged expert evidence on central issues.  These cases are of no assistance in criminal compensation matters where the onus is on the applicant.  A Judge in a criminal compensation matter is not required to accept evidence of an expert witness.  These applications are generally ex parte and such evidence is therefore seldom challenged.

The learned primary Judge here accepted significant portions of Dr Cameron's report, but he was entitled to balance her unchallenged evidence against the fact that the injuries were minor in that the true skin was not broken making the prospect of contracting serious diseases transmitted by bodily fluids much less likely than if there was potential contact between the bodily fluids of the applicant and respondent.

The minor nature of the injury is consistent with matters referred to in Dr Cameron's report, namely that the applicant is now happy in the work place, has improved considerably, is not threatened in his present work, or likely to be, and is unlikely to relapse absent further stressful events.  These findings do not seem to be entirely consistent with the diagnosis of a severe post traumatic stress disorder. 

On the material before the learned primary Judge his Honour was not obliged to assess the mental and nervous shock suffered by the applicant as moderate or severe rather than minor. 

The applicant also submits that the assessment of damages so failed to properly compensate the applicant that this Court should interfere.  In his written submissions Mr Kimmins, on behalf of the applicant, places particular reliance on a District Court decision Lees v. Callinan, Appeal No 2535 of 1998, 15 June 1998, in which damages in a perhaps similar case were assessed under the Criminal Offence Victims Act 1995 at $18,750.

In that case the blood test the police officer was required to undergo before being cleared from contacting serious diseases was 12 months rather than the three months in this case.  It is unclear whether in that case the bite or other lacerations broke the true skin so that there was a real potential for contact between the bodily fluids of the applicant and respondent.  Of course there was no appeal from the decision in Lees.

I am not persuaded that the learned primary Judge in this instance so erred in the exercise of his discretion such as would warrant this Court's intervention in granting leave to appeal.

In the circumstances, I would allow the extension of time within which to seek leave to appeal, but refuse the application for leave to appeal.

WILLIAMS JA:  I am not satisfied that any basis has been established for interfering with the assessment of quantum made by the learned Judge at first instance.  I agree with the orders proposed by the President.

HOLMES J:  I agree with the reasons of both Justice Williams and the President.  I would simply add by way of comment that a Judge in such an application is not required to adopt an expert's view of an injury to the exclusion of his own assessment and it would be quite wrong to do so.  I agree with the orders proposed.

THE PRESIDENT:  The orders are as I have set out.