Gottfried v Wills[2004] QDC 2

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995.

2. [2]
   The applicant is a middle aged woman who was assaulted at about 5.40am on 25 July 2002 after she had withdrawn some cash from the ATM at Mt Pleasant Shopping Centre in Mackay. She was then aged 48 years.

3. [3]
   Her assailant was a young woman aged 22 years, Zowie Ann Wills. She pleaded guilty before me in the District Court at Mackay on 6 March 2003 to a charge of armed robbery with actual violence and was sentenced to a partially suspended term of imprisonment.

4. [4]
   I will come to the details a little later but I recall the case well because of the feisty response of Mrs Gottfried to the attack. Not only did she refuse to part with her purse but she literally took the attack to her attacker putting her to flight. In the process some $40 and her mobile phone was dropped, the latter being recovered almost immediately from a nearby garden bed. Another woman at the scene who later disclaimed involvement may well have been an associate of Ms Wills if the version given to the court by defence counsel is accepted. Nothing turns on this.

5. [5]
   This other woman refused to become involved as did a male person who arrived at the ATM and withdrew money at or about the same time. By this stage it would seem that the attacker was gone and Mrs Gottfried was interested in calling the police. Some nearby Council workers ultimately did this.

6. [6]
   The instrument used by the attacker is described in the indictment as a stick. It had the approximate thickness of a broom handle and was about 28 centimetres in length. It is described elsewhere in the material as a metal bar but it would seem unlikely to have been made of solid metal.

7. [7]
   Mrs Gottfried was struck to the back as she turned from the ATM. After refusing to part with her money she was struck to the left shoulder, the blow dislodging her glasses. She stumbled and fell partially somehow sustaining some abrasions to the left cheek and bruising to her upper back. On being told by her attacker “Give the money bitch I’ve got a knife” she responded “No bitch bring it on” and then proceeded to throw some punches at her attacker attempting also to kick her attacker, as she put it, “in the nether regions”. Her attacker ran off.

8. [8]
   Mrs Gottfried was very shaken up by the incident. She said in evidence that she shivered for the remainder of the day. She was not only angry at her attacker but was infuriated by the indifference of the male customer at the ATM. She was frustrated at the tardiness of the security man she believed to be on the premises and described herself “kicking the door in”. When police arrived they initially said they would not see her about the matter until the following day. This in turn astounded her. She got her 18 year old son to drive her home where she had a shower, crying in the shower so as not to distress her children. She then got the children ready for school and took them school. She then wrote a letter to the local paper and made an appointment with her general practitioner. The letter was directed at the male ATM customer. She said in evidence: “… I asked him to help me. He ignored me went to the Rediteller and drove off after the girl had run away and I was so mad I wanted to put a letter and say thanks to the gutless wonder and when I went to hand it in they wanted more information because they seen the bruises on my face.”

9. [9]
   The article plus a photograph made the front page of the “Daily Mercury” for the following day and is Exhibit 3.

10. [10]
    Prior to her going to The Mercury she had been contacted again by police and asked to come in that morning. She had to postpone her GP appointment. After going to the paper she went then to the police station where she was kept waiting for some three hours. She was then sent to her general practitioner, Dr Cruickshank who gave her a script for sleeping tablets which she took for the following three or four nights. Her bruises were photographed. The bruising remained on her face for a “bit over a week”. The bruising on the back lasted longer and was painful when she lay down or sat down. Eating was also initially painful.

11. [11]
    Mrs Gottfried’s husband is described in the material as an alcoholic and a gambler who had become incapacitated due to some medical condition in or about 1975. He further suffered a stroke in about 1999 which made him completely dependent on his wife. She was on a Carer’s pension but also worked part time. At the time of the incident she was working in a food preparation business and continued in this work for quite some time.

12. [12]
    Mrs Gottfried had a Grade 11 education and in 2000 had acquired a teacher’s aide qualification. She was the mother of eight children. Four of these were still living at home, three boys aged 18, 12 and 11 and a girl aged 14. Another 24 year old son lived nearby.

13. [13]
    Prior to the incident she had suffered depression following her husband’s stroke and had been prescribed anti-depressants by her general practitioner. She says that she had discontinued taking these prior to the incident but that following the incident she obtained sleeping tablets from Dr Cruickshank and a Dr McFadgen. In early 2003 she consulted a Dr Kwan giving the following account:

“…I went back to him and I told him what had happened and said, you know, I couldn’t cope at home.  I was getting angry.  I didn’t want to go out shopping.  I had to wait for my sons to come and go to the Rediteller with me because there is no way I was going there on my own.

Sure?--  He said, ‘Well, you are in this depressive state.’, and I said, ‘Am I?’…

Did any of these doctors suggest that you needed to go and see a specialist?--  No-one ever suggested a specialist.”

14. [14]
    At some stage she went to a counsellor at a clinic in Wellington Street, Mackay but was told she was “Fine”. She accepted this in a matter of fact fashion. She was asked:

“Did you ask him that you wanted to see a doctor?--  Well, I was ignorant at the time.  I thought, “This is where you go and if they said, you’re fine, you’re fine.;  I didn’t know I could go any further.”

15. [15]
    She has continued to do the household chores, the cooking, cleaning and shopping. She continued in employment until the food outlet closed. She has more recently done a 10 week TAFE course in computers which involved three hours, one day a week.

16. [16]
    It seems that before and after seeing Mr Bailey and Mr Ryan for the first time in about April 2003 she had not been using the anti-depressants. She returned in June then to her general practitioner who told her “You’re just stressed out again. You get into depression again.” He put her back on medication which she continues to use. She speaks well of her current care. She told Mr Kimmins that Dr Kwan was “great”. He was very helpful and had given her a book to read about depression. The medication he prescribed was helpful. She had at one stage tried to get off it and had come back on it.

17. [17]
    This brings me to her two interviews with Mr Ryan, psychologist on 4 April 2003 and subsequently in October 2003 following my decision to adjourn the application on 9 October 2003 to enable the Crown to be served.

18. [18]
    On that occasion at pp 3-4 of the transcript of proceedings I noted that the description by Mr Ryan of the applicant was in stark contradiction with the presentation of Mrs Gottfried in the court material. Having now had the opportunity to see Mrs Gottfried in the witness box that contradiction is even more stark. Some of the observations of Mr Ryan were quoted by me as follows:

“Mrs Gottfried advised that she has felt her future is hopeless and will only worsen.  She has felt so sad that she can’t stand it.  She feels a total failure as a person.  She has been unable to derive any pleasure from the things she used to enjoy.  She claimed that she has felt guilty all the time. She has felt as if she has been punished.  She has lost confidence in herself, has been more critical of herself and has blamed herself for everything bad that happens.  She cries over very little thing.  She has been so restless or agitated that she’s had to keep moving and doing things.  She said, “I don’t want to do things, everything is a chore.”  She has found it difficult to become interested in anything and has lost most of her interest in other people and things.  She has trouble making decisions.  She has felt utterly worthless”.

19. [19]
    Mrs Gottfried presented before me as a no-nonsense woman who has continued to struggle with the difficult role of caring for her family and, in particular, her totally incapacitated husband. She has continued doing all of the household chores, doing part-time work, driving to the shops as before. She has remained apprehensive visiting ATMs. She recounted the circumstances of the offence with a degree of relish being scathingly critical of the male ATM customer, the security man, and the police who kept her waiting. She showed absolutely no avoidance symptoms, hallucinations, paranoid ideation, guilt, or hopelessness. Her sleep problems, tiredness and social withdrawal to a large extent pre-existed the incident and are explicable in terms of her domestic circumstances. She bears really no resemblance to the person described by Mr Ryan in the abovementioned passage.

20. [20]
    It emerged of course in cross-examination of Mr Ryan that these complaints were not volunteered by Mrs Gottfried at all. They are Mr Ryan’s own distillation of answers allegedly given by her to a series of questions.

21. [21]
    I am satisfied that Mr Ryan’s conclusions are hopelessly wrong. It seems that the process used by him was fundamentally flawed. I turn to some of the issues which cause me concern.

22. [22]
    The first matter to cause me some concern arose in the affidavit of Mrs Gottfried’s sworn 4 April 2003 the day after she saw Mr Ryan. At paragraph 14 she deposed:

“At the instigation of my Solicitor I have consulted Mr. T. Ryan, Psychologist, concerning the issue of Post-Traumatic Stress Disorder.  I also understand having been informed by my Solicitor, that the report of Mr. T Ryan will establish the extent of (if any) Post-Traumatic Stress that I have suffered as a result of the attack upon me.  Everything I told Mr. T Ryan is true and correct in every respect.  In fact everything I have 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.”

23. [23]
    The applicant, despite having been under the regular treatment of several general practitioners, had never once been referred for a psychological or psychiatric examination. She had been prescribed anti-depressants over a long period which on her evidence were working well. In these circumstances I find it puzzling that her solicitor would be referring her “concerning the issue of Post-Traumatic Stress Disorder” well before Mr Ryan’s report had come to hand. That report is actually dated 1 September 2003.

24. [24]
    Mr Ryan makes reference to the Diagnostic and Statistical Manual of Mental Disorders, 4^th Edition put out by the American Psychiatric Association (DSM-IV-TRtm).  The opening paragraph of that section which deals with anxiety disorders describes some 12 different conditions, only one of which is post-traumatic stress disorder.

25. [25]
    I find it curious that Mr Bailey would be referring a client for diagnosis of a specified anxiety disorder in the absence of any past history to support such a diagnosis. As I have pointed out above Mrs Gottfried’s problems which long pre-dated the relevant offence involved depression which was evidently responding well to medication.

26. [26]
    I must say that my concerns on this issue were further aroused when amongst the plethora of decided cases put in front of me I read a decision of His Honour Judge Robertson in Ned v Ned, a criminal compensation matter heard in the District Court at Maroochydore on 1 November 2000.  Co-incidentally the unreported decision reveals that the applicant was represented by Mr Kimmins instructed by Mr Bailey with the expert report provided by Mr Ryan.  At paragraph 4 of the unreported judgment Judge Robertson refers to the affidavit of Mr Ned:

“[4]  ‘… (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 upon me.  Everything I told Mr. T 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.’ ”

27. [27]
    This is of course word perfect with the paragraph of Mrs Gottfried’s affidavit to which I have already referred. There is the same intriguing question as to why Mr Ned who, as Judge Robertson observes, had made little reference previously to symptoms of a nervous shock injury was being referred by Mr Bailey again on the specific issue of post-traumatic stress disorder. How is that, in affidavits purportedly made by Mr Ned and Mrs Gottfried in person, the exact same wording came to be used?

28. [28]
    Mr Ryan’s finding is set out at paragraph 15 of Judge Robertson’s unreported judgment with obvious scepticism on the part of the Judge:

“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).’

…”.

29. [29]
    I suppose it is desirable at this stage to point out that applications for criminal compensation are brought against the perpetrator of the offence. In 99% of cases the perpetrator has no assets and/or has no interest in the proceedings and does not appear. The judge hears only from the applicant. The evidence on the part of the applicant is not able to be tested or contradicted. Typically the compensation is paid ex gratia by the Government from consolidated revenue.

30. [30]
    It is absolutely essential in these circumstances that expert evidence in such proceedings carefully identifies the consequences of the relevant offence. The legislation requires this.

31. [31]
    This was brought home to Mr Ryan by Judge Howell in the case of Lyle Charles Jensen Nos 481, 484, 494 of 2003 dated 11 April 2003.  Mr Ryan appeared on that hearing at the request of Judge Howell.  In his unreported judgment Judge Howell laments the position that judges are in on ex parte hearings which, as I have pointed out,  is the norm as far as criminal compensation applications are concerned.

32. [32]
    That case involved three girls aged 6, 8 and 11 who had been touched indecently by the respondent. The only count involving the 6 year old was that in the bath she had once been squirted with a toy dolphin on the vaginal area. Two of the four counts involving the 8 year involved similar conduct. At page 9 of his unreported judgment Judge Howell quotes Mr Ryan’s opinion concerning the 6 year old:

“A Court is entitled to be concerned when you have as an opinion that the said compensable conduct ‘caused sexual confusion, identity confusion, aggression towards others as a form of acting out internal distress, chronic depression including suicidal ideation, chronic guilt and shame, loss of trust of men in general, potentially intimate relational dysfunction in life, chronic anxiety and all the negative effects as outlined by the above DESNOS criteria’, as I said, resulting in an opinion that it caused post-traumatic stress disorder, severe nervous shock in the extreme upper range of severe.  Unsurprisingly, on that report, counsel made a submission that there the appropriate quantum should be $43,750 (for nervous and mental shock and adverse impact).”

33. [33]
    Judge Howell went on to observe that Mr Ryan’s opinion in respect of all three girls – despite their different ages and the different acts – were absolutely identical – “word perfect” as he observes at page 12 of his unreported decision. He was plainly incredulous at the opinions themselves, and disturbed as to three diagnoses being cast in precisely the same words. He was particularly concerned and quizzed Mr Ryan at length at the reference to and reliance on conduct other than that referred to in the indictment – conduct which is non-compensable under the Act.

34. [34]
    Fairly obviously in the present case Mrs Gottfried had serious lifestyle problems with her large family and seriously ill husband. He had been dependent on her for care for many years but since his stroke in 1999 was completely dependent being able to do virtually nothing for himself. She had four children still at home. The family were in straightened circumstances resulting in her refusal to part with any of her vital shopping money on the morning of the attack. She had absolutely no social life. She was placed by her general practitioner on anti-depressants. Yet Mr Ryan made virtually no attempt to segregate out these no-compensable elements from his opinion. The closest he came to this is at page 9 of his report:

“A loss of enjoyment of life in general - On a seven point Likert scale of life enjoyment, with one being ‘extreme unhappiness’ and seven being ‘extreme happiness’, Mrs Gottfried stated that during the twelve month pre-robbery/assault period she would have scored between a four and a five.  However, Mrs Gottfried advised that during the robbery/assault she would have scored a one and from the time of the incident to the present a two.

Mrs Gottfried stated that the robbery/assault has negatively impacted every aspect of her life.

Social dysfunction – On a seven point Likert scale of social interaction, with one being ‘never went out’ and seven being ‘always went out’, Mrs Gottfried advised that she would have scored a six during the twelve month period immediately prior to the robbery/assault and between a one and a two since its occurrence.  Elaborating on her post-robbery/assault social withdrawal, Mrs Gottfried stated that she has become like a hermit, giving her reasons for this as being “no energy, can’t be bothered and too scared.

Mrs Gottfried reported that she has continued to work at the fish bar one night per week since the assault even though she is nervous when doing so.  However, she claimed that ‘I have to do it because I need the money’.”

35. [35]
    Knowing what we do of Mrs Gottfried’s pre-incident family and medical history the pre-incident estimates are manifestly false. During all that time Mrs Gottfried was living an extremely difficult existence. Assuming that she actually made these claims Mr Ryan made seemingly no attempt to probe them. He made no attempt to speak to members of her family or more especially to her general practitioners. He was asked about this by Mr Fraser at page 29:

“So, all up you’ve seen Mrs Gottfried for about two hours?-- Yep.

You haven’t spoken to any of her relatives?--  No.

You haven’t – you knew she worked at the time, didn’t you?—Yep.

All right.  You didn’t choose to speak to any one of her work colleagues to say, ‘Look, what have you noticed about her?’?--  No. 

Would you think that might be of some assistance to you speaking to others to find out their experiences with, Mrs Gottfried, that that might not be helpful?--  Like I said, in a perfect world, that’s great to do that, but the thing is given constraints of time, it’s not always possible to do that but also, you know, given work loads and everything else, but the bottom line is a traumatic experience is very personal and it’s about the – it’s what the person suffers, right.  And each event is different for each person, right.  …”

36. [36]
    This is just not good enough. One doesn’t need “a perfect world”. It would have been a simple matter to canvas Mrs Gottfried’s medical history or speak to her adult sons including the one living nearby. Within a week of this first interview Mr Ryan had been told by Judge Howell in the plainest terms of the need to exclude non-compensable causes. This was months before he produced his report.

37. [37]
    This brings me to what I view as the most fundamental flaw in Mr Ryan’s approach. It appears that at interview with Mrs Gottfried he obtained some fairly basic background material which is set out in his report under the headings “Personal/Medical History”. No complaints of symptoms are to be found in that material. He then proceeded to administer what he describes as a Trauma Symptom Inventory putting various symptoms to the client and eliciting “Yes” and “No” answers. Similarly in his second interview he administered what is described as the “Psych Press Post Traumatic Scale Test” which involved a series of questions requiring answers in boxes with five levels of response generally along the lines of “Never, Rarely, Sometimes, Often, Always”.

38. [38]
    Mr Ryan can make favourable comments about such tests. It may well be that they have something to offer in the clinical practice of a psychologist. However, in the forensic area of compensation claims they are positively dangerous particularly if there has been no careful eliciting of the patient’s symptoms in a non-suggestive fashion to begin with. Experience teaches that this is a delicate and time-consuming process probably well beyond the sort of one-hour time frame within which Mr Ryan seems to have operated. Simply running a list of symptoms past a client, whether that list is taken from DSMIV or some other test in circumstances where there is an element of self interest in the answers is unacceptable. It comes as no surprise that in Jensen Mr Ryan told Judge Howell that in the large number of such examinations he had performed for court applications he had found post traumatic stress disorder in 85% of such cases all of them but for 2% in the severe range.  One would think that alarm bells would have been sounding with Mr Ryan as to his methodology.

39. [39]
    Obviously this was troubling Judge Howell in Jensen where at page 8 of judgment he observes:

“The psychologist said he saw each applicant once only and spoke to each for one hour.  It would be of great assistance to the court if it could hear such interviews on tape, to hear what was said, how it was said and whether there were say mere ‘yes’ answers to possibly leading questions.”

40. [40]
    This was precisely Mr Ryan’s method in the present instance and would also appear to have been his method in Ned v Ned. 

41. [41]
    In Chappel v Hart (1998) 195 CLR 232 at 272-273 Kirby J in the High Court made some observations concerning the perils of self interest in compensation cases.  The context of his comments was in the area of medical negligence but the perils are more general.  He said:

“The subjective criterion” (i.e. the particular patient’s response) “involves the danger of the malleability of the recollection even of an upright witness.  Once a disaster has occurred, it would be rare, at least where litigation has commenced, that a patient would not be persuaded in his or her own mind, that a failure to warn had significant consequences … .  Tribunals of fact can be trusted to reject absurd, self-interested assertions.”

42. [42]
    I make no comment on the capabilities of psychologists as distinct from psychiatrists to diagnose various anxiety disorders. Mr Kimmins, perhaps anticipating a challenge in that direction, has put before me some comments of Hampel J as to the discipline of psychology in R v Whitbread (1995) 78 ACR 452 at 460-461 which, with respect, appear eminently reasonable.  Mr Ryan though seems to imagine that asking the same leading question a number of times affords corroboration and that this involves “checks and balances” on the findings.  I reject this notion. 

43. [43]
    I form the view that Mr Ryan has failed to bring any real consideration to bear on the issues calling for his attention. I have adverted to the case of Jensen where in respect of three separate complainants his findings and opinions were absolutely identical.  I am referred by his Counsel in the present case to two decisions of Judge Noud in Tessner v Lenz and Stokes v Lenz both handed down on 16 July 2002.  Tessner was a 34 year old female police officer who was attacked by a person brandishing a knife.  Stokes was a 28 year old male police officer confronted in a similar situation.  I find it still odd that the opinion of Mr Ryan in respect of each police officer is absolutely identical, again word perfect.  These are quoted by Judge Noud in each of the two abovementioned judgments.  I find it curious and disturbing that in two individuals of different sex with no doubt different backgrounds and different emotional makeup there is no differentiation whatsoever. 

44. [44]
    In Harman v Horne (2002) QCA 349 the Court of Appeal upheld the right of a judge hearing a compensation application to make a modest award in circumstances where an expert witness had described post-traumatic stress disorder as “chronic” and “severe”.

45. [45]
    In Koowarta v Comprabar (2001) QSC 166 Moynihan J was even more forthright:

“[5]  The respondent did not appear to tender evidence.  The evidence for the applicant was on affidavit and was unchallenged.

[6]    As might be expected the applicant was and continues to be adversely affected mentally and physically by the attack on her which was without any justification.  That she is adversely affected mentally is supported by a psychologist’s report.  I am not prepared to conclude, as he has, that following and as a consequence of the stabbing the applicant developed chronic post-traumatic stress disorder with anxiety and depressed mood, alcohol dependent, borderline personality disorder and depressive personality disorder.  In fact, one wonders as to the usefulness of such a report which apparently does no more than uncritically accept the applicant’s account and states the obvious.”

46. [46]
    In R v Ward ex parte Dooley (2001) 2 Qd R 436 the Court of Appeal unanimously overturned a decision by the judge at first instance relating to severe nervous shock.  At p 440 it was observed:

“It seems evident that his Honour would have been justified in putting the mental or nervous shock in the “severe” category, were the respondent’s mental condition wholly or substantially due to the assault; but it was not.  It is our opinion that the aggravation should have been classified as in the ‘moderate’ category, as being a significant but temporary aggravation of a quite serious pre-existing condition.”

47. [47]
    This is precisely the point here. I find that Mrs Gottfried suffered an aggravation of her pre-existing depression as a result of the offence which falls into the minor/moderate category of mental or nervous shock. Her bruising subsided after a week or two. I reject Mr Ryan’s evidence altogether in diagnosing post-traumatic stress disorder.

48. [48]
    I assess compensation for mental or nervous shock at 10% of the Scheme maximum. I assess the bruising at 3% of the Scheme maximum. That produces a figure of $9,750. I order that the respondent Zowie Ann Wills pay to the applicant Maree Ann Gottfried the sum of $9,750 in respect of the injuries which the applicant received on 25 July 2002.

49. [49]
    This was a perfectly straightforward application for criminal compensation which could have been dealt with on the basis of readily available information from Dr Kwan. While I have no power under the legislation to order costs I make the observation that it would not be appropriate for Mrs Gottfried to be burdened with costs arising out of the futile exercise involving Mr Ryan. I also make the following recommendation to the Attorney that Mrs Gottfried be given favourable consideration in the matter of an ex gratia payment by his Department.