Proud v Windbigler[2004] QDC 44

CIVIL JURISDICTION

JUDGE ROBERTSON

and

and

MAROOCHYDORE

..DATE 30/01/2004

JUDGMENT

HIS HONOUR: This is an application for compensation pursuant to section 24 of the Criminal Offence Victims Act of 1995. On the 27th of November 2001, the first and second respondent pleaded guilty to and were convicted of one count of assault occasioning bodily harm with circumstances of aggravation.

The applicant, Anita Proud, was or had been the victim of what was described by Judge Dodds in sentencing as a terrifying attack at the hands of the two respondents, during the course of a motor vehicle journey at North Arm on the 18th of June, 2000. The circumstances of the attack are set out in her affidavit and in her statement made to police. It is suffice to say that it was sustained and violent and she felt, understandably, that her life was under threat.

When she was subsequently examined at the hospital, it was noted that she had a number of superficial soft tissues injuries, namely a facial haematoma, a haematoma on the right side of her head, tender bruising to the right flank and tender abdomen and bruising to her arms and legs. Those injuries were consistent with the extensive attack on her by the two respondents. By far the most significant injury that she suffered is a mental or nervous shock injury, which is described in appropriate detail in the report of clinical psychiatrist, Dr Jerome Gelb, dated the 21st of March, 2003.

I am satisfied that as a direct consequence of the attack, Miss Proud suffered a chronic post traumatic stress disorder, which, at the time of the examination by the psychiatrist had somewhat abated. It is not necessary for me to set out the distressing symptoms from which she suffers, they are symptoms that are commonly experienced by people who have been subjected to sudden and terrifying and unexpected violence.

In his outline of argument, Mr Richards appropriately refers to the scaling process mandated by Dooley v Ward [2001] 2 Queensland Reports 436 and undertaking that process, I award Miss Proud, under item 1 in the scheme, one per cent of the scheme maximum, namely $750 and under item 33, 20 per cent of the scheme maximum, that is a total of 21 per cent. Mr Richards, I know your mathematics are renowned throughout Queensland, so you will tell me immediately what that amounts to.

MR RICHARDS: I can't tell you immediately. I think it is $15,750. I had to think, your Honour.

HIS HONOUR: I order the respondents to pay, by way of compensation under the Act, to the applicant, Anita Lynette Proud, the sum of $15,750 and I declare for the purposes of any administrative review of these reasons for judgment that the applicant did not either directly or indirectly in any way contribute to her own injuries.

MR RICHARDS: Your Honour, there's one thing I just was thinking about outside before I came in, and I hadn't addressed it in my submissions, and that's whether or not your Honour wished to scale the award according to their roles.

HIS HONOUR: I did think about that, section 25, but it is a case where it would be very hard to scale it, given the nature of the attack. It was-----

MR RICHARDS: Yes, and they were both in it.

HIS HONOUR: Yes. And the man was in it and then the woman was in it, then they were in it together and he came back into it, so jointly and severally. I doubt it will make any difference.

MR RICHARDS: I don't think so, either your Honour, ultimately.

HIS HONOUR: Both of them will be impecunious, I am almost certain. Yes, I will stay operation of that order for a period of 48 hours and, in the event that Mr Windbigler appears this afternoon at 2.30, I will make consequential orders at the time, Mr Richards and Mr Hall will be notified by the Registry, if it is necessary.

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