DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Janelle Rae Speechley, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for personal injuries she sustained on or about 3 April 2001 arising out of the criminal conduct of the respondent, Mark John Baynes, who was convicted by this court on 7 May 2002 at Charters Towers for assault occasioning bodily harm to her.  The respondent, although being served with the application, made no appearance at the hearing.

2. [2]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

1. (a)
   the affidavit with exhibits of the applicant sworn 20 April 2004 and filed 7 May 2004.

2. (b)
   the affidavit with exhibits of John Andrew Bolton, solicitor sworn 20 April 2004 and filed 7 May 2004; and

3. (c)
   the affidavit of service of Scott Darren Hughey, sworn 2 September 2004 and filed by leave on 10 September 2004.

Facts

3. [3]
   The material shows that the applicant was assaulted by the respondent in that he punched her once in the left eye with some force causing the injuries the subject of this claim.

4. [4]
   The applicant and the respondent were staying in a room at the Northern Hotel at Hughenden on 3 April 2001. The applicant had been drinking at the bar of the hotel before retiring to the room. The door was locked upon her return so she knocked and asked the respondent, who was inside, to open the door. Once inside an argument ensued during which the respondent punched the applicant once to the face.

5. [5]
   It appears that there was a history of violence between the parties. The applicant and the respondent were in a de facto relationship during the period when this offence occurred. The violence in the relationship, it seems, was a “two-way street”, the applicant herself having assaulted the respondent on other occasions and on one occasion actually stabbed the respondent twice. None of these previous incidents have been the subject of any complaints to police.

6. [6]
   The applicant and the respondent have since separated and live in separate communities.

Applicant’s contribution

7. [7]
   In sentencing the respondent, the learned sentencing judge noted that there was some degree of provocation in the circumstances although ultimately this did not justify the respondent’s conduct.^[1]  It may, nevertheless, be taken into account by the court in assessing the degree of contribution (if any) on the part of the applicant for the injuries sustained in an application for compensation (see s 25(7) of the Act).

8. [8]
   On the material before me I cannot see where there has been any provocation for the respondent’s conduct in carrying out the assault.

9. [9]
   Therefore I am of the opinion that the applicant’s behaviour on this occasion did not contribute to the injury she sustained at the hand of the respondent.

Injuries

10. [10]
    The applicant suffered pain and bruising to the left eye. No medical treatment was sought by the applicant at any stage. She deposes in her affidavit that the bruising lasted for two months after the assault. She suffered from migraines also as a result and says that she took pain killers to ease the pain.

11. [11]
    The applicant further claims compensation for alleged “mental or nervous shock”.

Mental or nervous shock – causation

12. [12]
    It is now well accepted that to establish a “mental or nervous shock” injury the applicant must prove “more than a negative or unpleasant reaction to the offence; what must be proved is ‘(an) 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’ – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraph [17]”.^[2]

13. [13]
    A psychological assessment of the applicant was made by Ms Jenny Hatfield, psychologist, on 7 October and 14 October 2003 (2 years and 6 months post injury) and was subsequently detailed in a report dated 27 November 2003.^[3]

14. [14]
    Ms Hatfield states in the report:

“It is my opinion that Ms Speechley’s presentation would currently satisfy a psychiatric diagnosis of Depressive Disorder which might be described as of Moderate Severity.”^[4] 

15. [15]
    The issue is whether this “current” condition can be attributed to the punch the applicant received from the respondent the subject of the offence or whether its cause is for other reasons or a combination of both. Counsel for the applicant conceded that while the punch might not be directly causative of the injury, it was in a sense the “last straw” in the context of the whole relationship.

16. [16]
    In her affidavit, the applicant deposes that she is “no longer able to trust men” and that she has become socially withdrawn as a result of the attack. She states that six months after the assault she began to suffer from panic attacks which tend to occur once or twice per month. She concedes that she had suffered from similar attacks prior to the assault, but says that since the attack they have become more frequent and intense.^[5]

17. [17]
    Ms Hatfield reports that the applicant stated she has experienced a series of violent incidents by the respondent over the years at various places causing her to seek shelter and to leave the respondent from time to time but eventually reconciling with him only to endure a repetition of such conduct on future occasions.

18. [18]
    Ms Hatfield further states:

“It is therefore my opinion that it is not only the events of assault of 3 April 2001 which impact on her current presentation, but also the previous history of relationship with Mr Baynes.

There is no indication that significant events in Ms Speechley’s life; any pre-existing psychiatric, intellectual or other medical or psychological conditions have contributed to the impact, severity or inevitability of any current condition.”^[6]

19. [19]
    The topic has been the subject of judicial consideration in recent times and is comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls [2004] QDC 118.

20. [20]
    In LMV v Nicholls (supra) his Honour considered the current legislation and compared it with the now superseded legislation under the Criminal Code which applied (and still does) to acts done before the 18 December 1995.

21. [21]
    In paragraph [15] of the judgment, his Honour referred to the “test of causation in applications under the Code” [see R v Tiltman; ex parte Dawe (SC 324/95, 22 June 1995, unreported)] which was:

“… that if the conduct constituting the offences of which the respondent had been convicted could be said to have materially contributed to the total damage, the respondent was liable to pay compensation in respect of the total damage unless the respondent could separate the effects of the compensable and non-compensable conduct on the applicant with some reasonable measure of precision”.

22. [22]
    This test appears to have been approved by the Court of Appeal in Steinback v Steinback [2001] QCA 12.

23. [23]
    His Honour said further at paragraph [24]:

“There is an important difference between causation – whether a particular injury qualifies for compensation – and quantification: how much compensation is to be awarded for that injury.  The fact that the amount of compensation is to be assessed in a specified way, which is different from common law damages, does not necessarily mean that the common law test for causation is also not to be followed, particularly when the legislature has not specified what other approach to causation is to be used instead”.

24. [24]
    His Honour finally concluded that the proper approach on causation under the Act is the same as that applied under the Code i.e. Where the offence or offence “materially contributed” to the injury or condition there should be no apportionment on the basis of causation. The only exception is:

“…if it were possible to identify aspects of a psychiatric condition (or in principle any other injury) which were able to be specifically associated with something other than the conduct constituting the offences.  In such circumstances, these aspects of the injury would have to be disregarded.”^[7]

25. [25]
    I agree with his Honour’s analysis.

26. [26]
    On the evidence I find that the punch in the eye by the respondent upon the applicant was the “last straw” in a long history of domestic violence between the parties which resulted in the applicant suffering not only the physical injury to her eye, but also became the final precipitating factor leading to the diagnosis described by Ms Hatfield.

27. [27]
    I am therefore satisfied that the injury to the applicant on 3 April 2001 “materially contributed” to her diagnosed Depressive Disorder and her compensation should be assessed on this basis.

Categories of injuries

28. [28]
    The applicant’s injuries fall under the following categories of injury in Schedule 1 of the Act, namely:

1. (a)
   Item 1 – Bruising / laceration etc (minor / moderate) (percentage of scheme maximum 1% - 3%)

2. (b)
   Item 32 – Mental or nervous shock (moderate) (percentage of scheme maximum 10% - 20%);

29. [29]
    Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries she sustained on 3 April 2001 as follows:

30. [30]
    I therefore order that the respondent pay compensation to the applicant in the sum of $12,750.00 as set out above.

31. [31]
    In accordance with section 31 of the Act, I make no order as to costs.