Lind v Cosh
[2000] QDC 200
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Lind v Cosh[2000] QDC 200
Lind v Cosh[2000] QDC 200
DISTRICT COURT | No 1940 of 2000 |
CIVIL JURISDICTION
JUDGE O'BRIEN
SARA-JANE LOUISE LIND | Applicant |
and
ALLAN JAMES COSH | Respondent |
BRISBANE
DATE 16/06/2000
JUDGMENT
HIS HONOUR: This is an application for criminal compensation pursuant to the provisions of the Criminal Offence Victims Act of 1995. On the 8 May 1998 in the District Court at Beenleigh the respondent was convicted of an offence of assault occasioning bodily harm, the victim of that offence being the present applicant who now seeks compensation in respect of the injuries suffered by her.
The offence was committed on 16 October 1997. The applicant and the respondent had resided in what the learned Crown Prosecutor called a relationship that was “somewhat tempestuous”. It seems, on the material that was placed before me, that the relationship was characterised by arguments, “largely due to one or both of them having taken drink”. In any event, they had separated after one such incident in August 1997.
On the 16 October 1997 the applicant, who worked as a taxi driver, had driven the respondent to their home at Salisbury where the respondent told the applicant to “pack her things” and leave. After this occurred, and as the applicant was about to leave, the respondent kicked her car and punched the applicant to the left eye with his right fist. It was a single blow which resulted in a 3 to 4 centimeter laceration above the left eye and with significant peri-orbital swelling and bruising around the eye.
The applicant deposes as follows:
“At the time this incident occurred I was very scared and in fear of what the respondent might do to me. When the respondent punched me it was very painful and I was extremely alarmed at the amount of blood that was coming from the wound to my face. My eye, and the area around my eye, was extremely painful, tender and bruised. It ached for several days. I had a 3 or 4 centimetre laceration above my eye which required stitches under local anaesthetic. I now have a scar above my left eye which is noticeable but does not cause me too much concern. The area around my eye where I was punched is still painful from time to time especially when I am out in bright sunlight.”
She goes on to say in her affidavit:
“Since the incident I believe my life has changed and my attitude to people has changed. I am very concerned about my safety when, as a taxi driver, I drive at night or into certain parts of Brisbane or need to pick up men who are intoxicated. I did not have these fears before I was assaulted. I am also less trustful of men and finding it difficult to commit to another relationship because of my experiences with the respondent.”
The applicant is undoubtedly entitled to be compensated in respect of the injury to her eye and it is argued on her behalf that she should receive a further award for mental or nervous shock suffered as a consequence of the incident. There is before me a report from a psychiatrist, Dr Whiteford, who examined the applicant on 2 October 1998. Dr Whiteford reports as follows:
“Miss Lind development some post-traumatic stress disorder type symptoms, primarily a heightened sense of insecurity, especially when travelling alone in her taxi in the evenings and also in travelling to the West End area where her former boyfriend lives. However, Miss Lind's symptoms are not to a degree so as to meet the diagnostic criteria as provided for in the American Psychiatric Association'S Diagnostic and Statistical Manual For Mental Disorders Fourth Edition, that is, of the DSM4 for post-traumatic stress disorder.”
Dr Whiteford further notes that the applicant has considerable distrust of men arising not only from the specific assault but also from the generally abusive nature of her relationship with Mr Cosh. Also contributing to this, in Dr Whiteford's opinion, has been the applicant's experience as an adolescent being raised in a family which appears to have had a number of dysfunctional elements. Dr Whiteford concludes that the applicant does not have any psychiatric disorder and that formal psychiatric treatment or treatment from a clinical psychologist is not indicated.
Pursuant to Part 3 of the Act, the applicant is entitled to compensation for injuries suffered “because of the offence”. Injury is defined to mean, “Any bodily injury, mental or nervous shock, pregnancy or other injury specified in the compensation table or prescribed under the regulations.” The question which now arises is whether, in light of Dr Whiteford's report, the applicant has suffered a further compensable injury within the meaning of that section.
Mr Green, who appeared to argue the application on behalf of the applicant, had placed considerable reliance upon the decision of Thomas JA in Ferguson v. Kazakoff, 2000 QSC delivered on 6 June 2000. His Honour there concluded that the term mental or nervous shock should not be confined to conditions that are recognised as psychiatric disorders although something more must be shown than “fear, fright, unpleasant memories or anger towards the offender or a combination of such reactions.” His Honour observed that it is “extremely difficult” to define the point at which mental consequences to a claimant become compensable as mental or nervous shock, but the Court needs to be affirmatively satisfied that such shock has been suffered before any award for compensation is made in this regard.
It is clear that other judges have taken a different view of a not dissimilar definition of “injury” contained in the previous criminal compensation regime set out in Chapter 65 of the Criminal Code. In the Queen v. Horne ex parte Hill, Supreme Court No 8829 of 1999 delivered on 29 October 1999, Byrne J held that in assessing compensation for the purposes of section 663A of the Criminal Code, a condition falling short of a disease or disorder did not constitute mental or nervous shock and was therefore not sufficient to attract an award of compensation under the legislation. In reaching this conclusion, his Honour made reference to the following comments of Macrossan CJ in the Queen v. Morrison ex parte West (1998) 2 Queensland Reports 79 at 82:
“A broad meaning should be attributed to mental shock and nervous shock in section 663A and that meaning should be carried over without modification to the same phrase which appears in section 663A(A)(1). The phrase should be construed as including the full range of psychiatric illnesses whether or not they would, in the absence of the phrase in the definition of injury, have been taken to be included within bodily harm. The point is that they have been expressly included as a particular category of bodily harm and there is no sufficient reason for construing the category in a way which excludes some or all psychiatric illnesses, leaving them to be included only under bodily harm. The effect of the specific reference is to confirm that mental illnesses are included in the definition of injury and, while also included in bodily harm, amount to a particular category of it.”
Macrossan CJ was there considering the definition of injury that is set out in the compensation provisions of the Criminal Code. It is slightly different in form, as his Honour Mr Justice Thomas observed in Ferguson v. Kazakoff. In the Queen v. Morrison, however, Fitzgerald P at page 86 had referred with apparent approval to the following comment of Bray Chief Justice in Battista v. Cooper (1976) 14 South Australian State Reports 225 at 227:
“I think the intention of the definition [in section 3 of the South Australian Criminal Injuries Compensation Act 1969] is to equate, with the possible exception of pregnancy, the sort of physical or mental injury, for which compensation may be recovered under the Act, with the sort of physical or mental injury for which damages may be recovered at common law. There is a familiar distinction between mere sorrow and grief which causes emotional distress and no more and something which causes, in addition, some sort of physical, mental or psychological trauma with consequential effect on physical or mental or psychological health. This distinction may ultimately, with the development of science, turn out to be an unreal one. It may be found that all emotional distress produces some effect on physical or mental health. For the present, it is to be treated as a real distinction, as it was put by Lord Denning in Hinds v. Barry (1970) 2 Q.B. 40 at 42. In English law no damages are awarded for grief or sorrow caused by a person's death. No damages are to be given for the worry about the children or for the financial strain or stress, or the difficulties of adjusting to a new life. Damages are, however, recoverable for nervous shock or, to put it in medical terms, for any recognisable psychiatric illness caused by the breach of the duty by the defendant.”
In the Queen v. Anell ex parte Anderson (1998) 2 Queensland reports 174, Lee J held that an “injury” for the purposes of Chapter 625A of the Criminal Code was any reasonably discrete injury the consequence of an indictable offence and at page 184 his Honour expressed the view that, although the term “nervous shock” is a wide one, it is not wide enough to cover a situation where, although the applicant has obviously suffered a diminished functioning and minor depression, he has not been diagnosed as suffering from a recognised psychiatric illness.
There would seem no doubt that the term “nervous shock” has acquired a meaning at common law which involves something more than, in the words of Thomas JA, “normal human reaction or emotions following a stressful event”, and that it is, in fact, confined to cases involving a recognisable illness. See, for example, Victorian Railways Commissioner v. Coultas (1887) 8813 AC 222 and Chester and Waverley Corporation (1939) 62 Commonwealth Law Reports 1. As Thomas JA observed in Ferguson v. Kazakoff, the ordinary usage of the term has been to describe situations of injury to health, illness or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event.
In my view, it must be assumed that those who drafted the present legislation were aware of the meaning that the term had acquired at common law. It is my view that the phrase, where it appears in the legislation, should bear that meaning. Even if something less than an identifiable psychiatric illness is sufficient to attract an award of compensation, I consider that the evidence in this case really establishes no more than that the applicant has suffered a degree of concern, perhaps even fear, as a consequence of the incident. The evidence falls well short, in my view, of establishing mental or nervous shock. Consequently, I propose to make no award under this head. There is a claim under item 27 for facial disfigurement or bodily scarring. The residual scarring, on the applicant's evidence, to which I have referred, would seem to be of a relatively minor nature. Certainly she says that it causes her no real concerns. Pursuant to section 26(1) of the Act I would treat it as being part of a single injury and make some allowance in an award for bruising/laceration in the mid-range of Item 2 of the schedule.
In the result, I order that the respondent, Allan James Cosh, should pay to the applicant, Sara-Jane Louise Lind, the sum of $3,000 by way of compensation for the injuries suffered by her by reason of the offence of which the respondent was convicted in the District Court at Beenleigh on 8 May 1998.