Ned v Ned[2000] QDC 323

DISTRICT COURT OF QUEENSLAND

[1] This is an application pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (hereafter “the Act”). The applicant and respondent are brothers. The applicant was 16 years of age at the time of the incident, and his brother was 19 years old. They lived, with their extended family, in the same house at Doomadgee. The applicant has filed an affidavit prepared by his solicitor and sworn by the respondent, in which the respondent disavows, in highly legalistic terms, any interest in participating in the proceedings.

[2] On 13 April 1999, the respondent pleaded guilty in the Domadgee District Court to unlawfully doing grievous bodily harm to the applicant. The facts, as related to me during the sentence hearing on that day, were to the effect that on the afternoon of 29 August 1998, the applicant and the respondent were sitting in the front yard of their home drinking beer. Both were fairly intoxicated. An argument developed out of a family dispute that had been brewing during the day between the respondent and other members of the family. The respondent and the applicant, in effect, agreed to have a fight. In the words of the applicant: “It was to be a fair fight involving fists”. I find that the respondent had a knife in his possession. A witness had earlier seen him with a knife tucked down the front of his pants. The consensual fight commenced. Neither the applicant nor the respondent have any real memory of what occurred next, but it appears that the applicant was stabbed by the respondent in the chest and back on a number of occasions.

The Evidence

[3] At the time of the sentencing hearing, the respondent’s counsel informed me that the brothers still lived under the same roof, got on well together, and that the applicant did not want the respondent charged. A victim impact statement was tendered by the Crown Prosecutor, a copy of which is annexed to the affidavit of Mr Bailey and marked exhibit “B”. Of some significance is the applicant’s statement in response to the question relating to the before and after comparison:

“No family problems and I get on with my brother. It has not affected me at home or with my friends.”

In the victim impact statement he describes his feelings at the time of the incident as being scared and in pain, he also says he was angry after the event.

[4] In his affidavit he described symptoms and disabilities associated with his physical injuries, but makes very little reference to any symptoms relevant to a nervous shock injury. In regard to this aspect he says, in paragraph 7 of his affidavit:

“(7) At the instigation of my solicitor I have consulted Mr T Ryan, a psychologist, concerning the issue of post traumatic stress disorder. I also understand, having been informed by my solicitor, that the report of Mr Ryan will establish the extent of (if any) post traumatic stress that I have suffered as a result of the attack on me. Everything I told Mr Ryan is true and correct in every respect. In fact everything I’ve told any doctor or other professional that I have consulted in relation to my injuries arising from this attack upon me is true and correct in every respect”.

I will return to this issue of nervous shock later in my judgment.

[5] I was informed at the sentencing hearing that, shortly after the incident, the applicant was taken to the Domadgee Hospital and examined by Dr Bondeson. She noted a wound to the right side of his chest, with air bubbling from the wound. There was a laceration, approximately five centimetres long, on the right side of his chest, which penetrated approximately eight centimetres into the lung cavity, with obvious air escaping. There was a laceration on the left side of his chest, approximately five centimetres long. There was a laceration, approximately seven centimetres in length, to his left thigh, which was bleeding profusely, and a three centimetre laceration on his right wrist which had broken the true skin. Chest x-rays revealed a partial pneumothorax. Emergency resuscitation measures were undertaken and a chest drain was inserted. The applicant was transferred to the Mount Isa Base Hospital by the Royal Flying Doctors Service.

[6] In the proceedings for compensation before me, there are no medical reports. There are no reports from the Mount Isa Base Hospital. The only medical evidence placed before me is contained in the transcript of the sentencing proceedings, in which the Crown Prosecutor read from the report of Dr Bondeson. Other than these facts, there are no other medical reports before me to enable me to assess, for example, any residual disabilities or long term effects to health.

The Law

[7] Section 24(2) of the Act provides:

“The person against whom the personal offence is committed may apply to the Court……for an order that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence”.

Section 24(3) of the Act provides:

“The Court may make an order……for an amount to be paid by the convicted person to the applicant because of the injury”.

[8] Under the now repealed Criminal Code scheme (previously section 663B), the Court could order compensation for injury caused:

“By reason of the offence of which (the respondent) is convicted”.

[9] In my view, there is nothing in the Act to undermine the requirement which existed in relation to applications for compensation under the Code scheme, that the applicant has the onus of establishing, on the balance of probabilities, a causal link between the injury suffered and the personal offence of which the respondent has been convicted. Section 30 of the Act, and the example given as a footnote to the section in the Act, does not alter my opinion on this point. Indeed, Mr Kimmins did not contend to the contrary.

The Medical Evidence

[10] In my view, it is well beyond the expertise of a clinical psychologist to express any opinion as to the long term or ongoing physical sequelae of an injury, except in the sense that it is necessary to relate it to an opinion expressed within the scope of his or her expertise. I have serious reservations as to the weight of an opinion expressed by a psychologist as to a psychiatric diagnosis based on the Diagnostic and Statistical Manual of Mental Disorders, fourth edition (1994)-DSM-IV, although, having regard to section 30 of the Act, I am prepared to act on Mr Ryan’s opinion, subject to the reservations stated below.

[11] It follows that there is no medical evidence, apart from the facts extracted from the transcript, to support any finding of fact relating to the long term and permanent disability flowing from the physical injuries.

[12] In relation to compensation applications under the Code scheme, the Chief Justice has recently given a timely reminder to those charged with the preparation and prosecution of these applications, to at least observe the basic requirements to ensure that the Court has an evidentiary basis for finding a causal connection between injury suffered and present disability: see HW v LO [2000] QCA 337. His remarks are equally applicable to applications under the Act, subject to the express words of section 30.

Findings

[13] I am satisfied that as a result of the personal offence, the applicant suffered the following injuries:

1. (1)
   “A deep penetrating wound to the right side of his chest.
2. (2)
   Laceration, approximately five centimetres long, in the right side of his chest, approximately eight centimetres into the lung cavity.
3. (3)
   Laceration on the left side of the chest five centimetres long.
4. (4)
   Laceration to his left thigh, approximately seven centimetres long.
5. (5)
   A three centimetre laceration on the right wrist.
6. (6)
   Partial pneumothorax.”

I accept that these injuries would have been very painful, indeed they were life threatening.

[14] In the absence of evidence, I am unable to find any causal connection between the applicant’s stated fitness problems (he says: “I estimate that I can only run half as far and half as fast as I could before this injury”) and the offences of which the respondent was convicted, and I am unable to find if indeed there is any permanent disability in lung use as a result of the injuries sustained.

[15] In relation to the nervous shock injury, there is a real paucity of detail as to the symptoms the applicant presently has that form the basis of the opinion expressed by the psychologist, namely:

“Mr Ned suffered a severe nervous shock in the high range of severe, in response to life threatening trauma and permanently disabling physical trauma. The nervous shock experienced by Mr Ned appears to have resulted in the development of chronic post traumatic stress disorder as is set out in the DSM-IV (1994).”

Mr Ryan interviewed and assessed the applicant on 14 August 2000. Mr Ryan referred to the physical sequelae, as alleged by the applicant in his history, but to which no medical evidence has been assembled and placed before the Court. He referred to the administration of the trauma symptom inventory (TSI), which, apparently, is a 100 item test of post traumatic stress and other sequelae of traumatic events. The questions relate to psychological sequelae over a six month period, commencing at the time of the incident. Without stating what the questions were, or indeed the details of any answers given, Mr Ryan states that the applicant’s scores were “clinically significant” on three out of 10 clinical scales covered by the TSI.

[16] Of much greater assistance to me is the statement of the symptoms set out at the bottom of page 5 and into page 6 of Mr Ryan’s report. Again, I must discount any opinion by him, albeit unintentional, as to the physical consequences of the injuries.

[17] As to the information under “fear of death”, I accept that at the time of the incident the applicant justifiably feared for his life and thought he would die. However, Mr Ryan’s statement that: “…….he has continued to be acutely fearful of the possibility of future harm since the stabbing and consequently has curtailed his social activities since the assault”, has to be discounted significantly in light of the applicant’s own statement in the victim impact statement, to which I earlier referred.

Quantum

[18] In his written submissions, Mr Kimmins seeks orders under four heads of the compensation table. Setting aside for the moment the nervous shock injury, Mr Kimmins submits that I should make separate awards under items 23 (chest injury/severe), 26 (stab wound/severe) and 27 (bodily scarring/minor-moderate). Having regard to section 26(4) of the Act, I am satisfied that the applicant’s physical injuries should be regarded as “a substantially single state of injury”, and that an assessment should be made under item 26, to cover all aspects of his physical injury, of 30 per cent of the scheme maximum, namely $22,500.

[19] In relation to the nervous shock injury, and discounting for the factors to which I have earlier referred, I regard item 32 as the appropriate item, and I will allow the applicant 10 per cent of the scheme maximum under the heading, namely $7,500. The total award is, therefore, $30,000.

[20] I have already mentioned that the applicant and the respondent were heavily intoxicated and that they had agreed, after an argument, to engage in a consensual fight. This is not one of those cases in which there has, on the evidence, been a gap between the consensual fight and the infliction of a serious injury with a weapon.

[21] Having regard to section 24(7) of the Act, it is difficult not to avoid the conclusion which I have reached; that the applicant has, by his own conduct, contributed indirectly to his own injury, and, in my opinion, the award should be discounted accordingly by one third. I therefore order the respondent to pay to the applicant, by way of compensation under the Act, the sum of $20,000.