Re Marshall[2003] QDC 302

[2003] QDC 302

DISTRICT COURT

CIVIL JURISDICTION

JUDGE HOATH

No 2423 of 2003

IN THE MATTER OF SECTION 24 OF THE CRIMINAL OFFENCE VICTIMS ACT 1995

IN THE MATTER OF AN APPLICATION BY STEPHEN LLOYD MARSHALL THAT GEORGE HILTON McCLURE PAY HIM CRIMINAL COMPENSATION

No 2424 of 2003

IN THE MATTER OF SECTION 24 OF THE CRIMINAL OFFENCE VICTIMS ACT 1995

IN THE MATTER OF AN APPLICATION BY MARK ERNEST EDWARDS THAT GEORGE HILTON McCLURE PAY HIM CRIMINAL COMPENSATION

BRISBANE

DATE 07/08/2003

ORDER

HIS HONOUR:  These are two separate applications by serving police officers for criminal compensation for injuries sustained as a result of the offence of serious assault committed upon them by George Hilton McClure.

As the claims arise out of the one incident and as both officers suffered a similar injury it is appropriate to deal with them together.

The applicants Mark Ernest Edwards and Stephen Lloyd Marshall were on duty on the 24th of January 2000 at the Boondall Entertainment Centre when the respondent George McClure was arrested by police and placed in the rear of a police van.

Prior to being placed in the van McClure had been struggling violently and had apparently suffered some injury to his mouth.  Some time after McClure was placed in the van the applicants opened the rear door of the van to check on his condition.  Whilst doing that the respondent spat a mixture of blood and saliva in their faces.

At the scene both applicants had their faces and eyes cleaned with a saline wash by St John's Ambulance officers.  They were then taken to St Andrew's Hospital where blood samples were taken from them to test for the presence of hepatitis B and C and HIV.  Those test, obviously, wouldn't show whether they had been contaminated that day by the respondent.

Both officers underwent further blood tests at three monthly intervals before being cleared of having contracted any infectious disease as a result of the respondent's actions.

On the 25th of July 2001 the respondent was convicted of offences of serious assault on each of the applicants.  These applications are for compensation as a result of injury suffered by them because of those assaults.  As neither applicant suffered any physical injury their claim falls to be assessed on the basis of mental or nervous shock.

The amount of compensation an applicant is entitled to under the Criminal Offence Victims Act does not involve applying the principles used to determine common law damages for personal injury, but is limited to the amount specified or within the range specified for a particular injury referred to in the compensation table in schedule 1 of the Criminal Offence Victims Act with the maximum prescribed being reserved for the most serious cases and other cases being scaled down accordingly.

At the time the offences were committed on the applicants the respondent appeared to be drugged, he had some items in his possession consistent with drug use and needle marks were visible on his arms.  It was later ascertained that the respondent had served time in prison.  Although attempts were made from prison authorities to ascertain whether the respondent was recorded as having hepatitis or HIV, that information was not provided to the applicants.

Not unnaturally in the circumstances that I have just related, it was reasonably open to both officers to conclude that the respondent may be a carrier of hepatitis or HIV infection.

The applicant, Mr Edwards, is 43 years of age, he is a married man with two children under five.  As a result of his concern over the possibility of having contacted a communicable disease from the respondent he had difficulty sleeping, had persistent thoughts of having contacted hepatitis or HIV and became more weary in dealing with offenders.

Sexual relations with wife were strained and he was fearful of passing any infection to his wife and young child.

He was transferred from patrol work and now performs administrative work with less enthusiasm.  Earlier this year Mr Edwards was seen by Dr Diana Cameron a clinical and neuro-psychologist who was of the opinion that the applicant suffered reactive depression as a result of the assault.Dr Cameron expressed the view that he suffered mental anguish and worry over a 12 month period.

Since being cleared of having contracted any disease his symptoms have, for the most part, abated.

Stephen Lloyd Marshall is 34 years of age.  He was married at the time of the offence, but is now divorced.  He has a daughter who was just over two years of age at the time of the offence. 

As a consequence of the offence the applicant became worried about having contracted a communicable disease and further worried that he could pass it on to his wife and child. 

He lost interest in sexual relations with his wife and attributes this as a contributing factor to the break up of his marriage. 

He became hesitant about bodily contact with his daughter.  He had difficulty sleeping and had recurring nightmares.  He considers that, as a consequence of this offence, he is a less effective police officer.  Mr Marshall was also seen by Dr Cameron who was of the opinion that he also suffered reactive depression as a result of the assault.

Mr Marshall's symptoms have also, for the most part, abated since being cleared of the disease.  In Mr Marshall's case, Dr Cameron suggests that he could benefit from some counselling.  Whilst there have been some differences in the consequences suffered by both officers, those differences tend to even out and in my view, on an assessment of compensation, their entitlement appears to be relatively similar.  In my view, a reasonable assessment of their entitlement would be 15 per cent of the scale maximum.  That is, the sum of $11,250.

Accordingly, I order that the respondent, George Hilton McClure pay the applicant, Mark Ernest Edwards, the sum of $11,250 by way of compensation for injury suffered by the applicant as a result of the offence of serious assault of which the respondent was convicted on the 25th of July 2001.

I further order that the respondent, George Hilton McClure, pay the applicant, Stephen Lloyd Marshall, the sum of $11,250 by way of compensation for injury suffered by the applicant as a result of the offence of serious assault, of which the respondent was convicted on the 25th of July 2001.

Anything further, Mr Jones?

MR JONES:  No, your Honour, thank you.

HIS HONOUR:  Thank you for your assistance.