Rankin v Rankin[2004] QDC 516

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Beverley Jean Rankin, claims compensation under s 663B(1) of the Criminal Code of Queensland (“the Code”) for bodily injuries she sustained on 19 March 1992 arising out of the criminal conduct of the respondent, Thomas Theodore Rankin, who was convicted and sentenced by this court on 9 October 1992 at Rockhampton 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 supported by the following material:-

1. (a)
   two affidavits of the applicant, the first sworn 7 June 2004 and filed 20 July 2004; the second sworn 8 October 2004, filed by leave on 11 October 2004.

2. (b)
   the affidavit with exhibits of Janette Fadden, Legal Officer, sworn 19 July 2004 and filed 20 July 2004;

3. (c)
   the affidavit with exhibit of Dr John Edward Flanagan, psychiatrist, sworn 1 July 2004 and filed 20 July 2004;

4. (d)
   the affidavit of service of John Eliott Campbell, sworn 11 August 2004 and filed on 20 August 2004.

Relevant Legislation

3. [3]
   As the offences occurred prior to 18 December 1995, Chapter 65A of the Code applies, as if not repealed.^[1]  As mentioned above, this application is made pursuant to s 663B(1) of the Code which relevantly provides:

“Where a person is convicted on indictment of any indictable offence relating to the person of any person or of more than 1 indictable offence relating to the person of any person (whether in respect of 1 indictment or more than 1 indictment) arising out of the one course of conduct or closely related courses of conduct of that person so convicted, the court, on the application by or on behalf of the person aggrieved by the offence or offences, may, in addition to any other sentence or order it may make, order the person to pay to the person aggrieved a sum not exceeding the prescribed amount by way of compensation for injury suffered by the person by reason of the offence or offences of which the offender is convicted,” (my emphasis).

4. [4]
   In assessing the appropriate sum for compensation to which the applicant may be entitled it is necessary to consider the relevant “prescribed amount” which applied at the time when the offence was committed.

5. [5]
   Under s 663AA of the Code the maximum “prescribed amount” payable for injuries described as “mental or nervous shock” after 1 July 1984 and before the Criminal Offence Victims Act 1995 (“COVA”) was introduced effective from 18 December 1995, is $20,000.00.

6. [6]
   The principles to be applied in the assessment of compensation payable under the Code are in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.^[2]  Where there is a prescribed upper limit applicable, “that amount should be awarded if it is less than the amount of compensation assessed”.^[3]

Limitation Period

7. [7]
   There has been a delay in bringing these proceedings before the court. The applicant deposes in her affidavit filed by leave on 11 October 2004 that the delay was attributed to her ignorance of the availability of a criminal compensation scheme for victims of crime until informed of such a scheme in late 2002.

8. [8]
   Section 663B of the Code does not prescribe a limitation period within which applications for compensation must be made but reference should be made to the limitation issues arising out of the delay in failure to bring this application for almost 11 years after the respondent’s conviction for the relevant offence.

9. [9]
   Section 10(1)(d) of the Limitation of Actions Act 1974 (Qld) (“the Act”) prescribes a limitation period of six years within which to bring “an action to recover a sum recoverable by virtue of an enactment other than a penalty or forfeiture or sum by way of penalty or forfeiture”.  A claim under s 663B of the Code falls into this category.

10. [10]
    It is settled law that where a person has a right to sue for a remedy and that right is governed by a limitation period within which that right must be prosecuted it is for the other party to the proceeding to plead the expiration of the limitation period before that right can be defeated.

11. [11]
    I have dealt with the issue of delay and the application of the Act at some length in the decision of MD v BRD (unreported District Court judgment 15 October 2004) which I shall not repeat here but the question of any relevance of the Act to this type of claim is not a matter for the court to act upon unilaterally in the absence of its being raised by the respondent to the proceeding.

12. [12]
    No appearance has been made by the respondent in this matter despite service of the application and supporting documents on him on 4 August 2004 and therefore no limitation issue has arisen in this proceeding. It is as issue which may be considered when an application is made for an ex gratia payment under s 663C of the Code.^[4]

Facts

13. [13]
    The applicant was the respondent’s wife. They had separated twelve (12) months prior to these events but on the night in question, 19 March 1992, the respondent was at the applicant’s house.

14. [14]
    The applicant retired to bed at about 8pm. She awoke to a sharp pain in her side and the respondent standing over her. She yelled at him to leave and he refused. They then began shouting at each other before a struggle ensued. During this struggle the respondent hit the applicant a number of times to the right side of her face.^[5]

15. [15]
    He said words to the effect that he would murder her that night. He punched her yet again and then commenced to drag her by the hair across the room. He then threw her a number of times against the wall.

16. [16]
    The applicant managed to break free from the respondent by kicking him in the groin area. Another resident of the house came into the room and the applicant was able to escape to her brother’s house who then took her to the Woorabinda Hospital.

Injuries

17. [17]
    The applicant was examined at Woorabinda Hospital by Sister Anne Mary Dunn. A handwritten copy of the medical records appears as exhibit “C” to the affidavit of Janette Fadden. Unfortunately, the copy is difficult to decipher in parts so I have referred to the prosecutor’s summary of Sister Dunn’s diagnosis in the transcript of proceedings referred to in paragraph [14] above.

18. [18]
    Sister Dunn noted that the applicant was suffering from the following injuries:

• A decreased and limited range of movement of her right jaw;
• A swelling on the right cheek in the mid-jaw line;
• A swelling and superficial bruising to the inside of her right cheek;
• A small 0.5 centimetre long abrasion on the inner side of her lower lip;
• Tenderness to the under side of the left forearm and the right arm; and
• An abrasion on the mid-forehead approximately 2.5 cm long and 0.5 cm thick.

19. [19]
    The applicant was treated for these injuries and was discharged in the care of her brother. She later returned to the hospital on 23 March 1992 complaining of pain from the injuries. She was prescribed panadeine for the bruising and swelling and was told to apply cold compresses and to rest.

20. [20]
    In her affidavit filed 20 July 2004, the applicant swears that in respect of her physical injuries:

• “The bruising lasted for about one month but it was about one year before I could really use my jaw properly again for example to chew a piece of steak;
• In the days that followed the assault physically I could not move as I was incapable of doing anything;
• My body was in constant pain and not even the strongest pain killers were helping me.”

21. [21]
    The applicant further claims compensation for alleged “mental or nervous shock” and adopts the explanations of Dr John Edward Flanagan, psychiatrist, in his report of 12 March 2004^[6] as to “the effects” the incident has had on her life.

22. [22]
    In respect of her psychological injuries, the applicant further deposes that:

• “At the time of the offence was occurring I was feeling very frightened and alone. I was too scared to run away as that would have aggravated the respondent more;
• There was no one around at the time to help me in any way;
• I was thinking ‘What is everybody going to say about my looks. I was wondering if they would laugh at me because of what had happened;
• I was very scared of leaving the house, especially my room. Also I knew if I did try to leave my assailant would only stop me and bash me again;
• On a day to day basis I still live in fear that the respondent may attack me again. It is an ongoing fear and I do not know how to free myself from it;
• I feel that I have become a recluse in my own home and my relationship with my family and friends is very strained. That is because I hardly ever go to see them because I am afraid to venture out;
• So much of my life has been affected in every way possible. Once I was a happy go lucky person with a hello for anyone I met or passed on the street but since the offence has occurred I am too frightened to smile or even lift my head up when passing by people;
• I found the legal proceedings had a very stressful impact on me. I feel like after everything that had happened to me I cannot go on. I just want to simply give up. Emotionally it is very draining”.

23. [23]
    Dr Flanagan obviously had access to the applicant’s full hospital records and sets out a summary of what he describes as the applicant’s “Relevant Injury History from Medical records”, namely:

• “In December 1989 she suffered from a fractured right mandible and fractured face from an assault and she was transferred to Brisbane for operative wiring of this fracture.
• In October 90 she presented to Woorabinda Hospital with a bruised face from an assault.
• In October 91, ditto.
• On 20.3.92 she presented with an injured face resulting from an assault of the previous day. Soft tissue injuries were described in the Woorabinda notes and in your letter. She was treated conservatively and followed up three days later.
• On 11.7.92 she presented to Rockhampton Hospital A&E. She claimed that she had been kicked by her husband in the head and complained of a fractured jaw. This was indeed the diagnosis and a fractured left mandible was ? wired, ? plated on the following day.
• In August 92, she presented to A&E with soft tissue facial injuries, inflicted by an unknown man’s fist three days before.
• On 10.11.95, she was brought to A&E by the police having been assaulted by two men. She had been dragged to the ground by her hair and been kicked and punched in the face. She was concerned about the plate in her jaw. She was admitted. It is not clear to me what her injuries were on that occasion, or whether she had surgery. Elsewhere in her file when her past history has been summarised it stated ? fractured left and right jaw 95.
• On 20.2.02, she presented at A&E referred from Woorabinda. She claimed to have been assaulted two weeks before and subsequently “screws came out” she was requesting jaw x-rays. She was referred to the faciomaxillary clinic.
• On 22.5.02, she had an operation at the Rockhampton Hospital to remove screws and plates from the right mandible.”

24. [24]
    This history is most significant in the consideration of the extent to which “the index assault” as it has been so described, has caused or contributed to the applicant’s condition as diagnosed by Dr Flanagan and deposed to in the applicant’s affidavit in support of her claim.

25. [25]
    Dr Flanagan also recorded the applicant’s comments on what might be described as her general recollection of the index assault and other events under the heading of “Patient’s History” on page 2 of his report.

26. [26]
    Dr Flanagan reports that the applicant:

• “…said she couldn’t remember very much about the assault of the 19.3.92;
• She had been bashed so many times before and since;
• She said she remembered being woken up and bashed around the head with a piece of firewood;
• She thinks she was knocked out and woke up in Brisbane where she was operated on”.

As Dr Flanagan observes this later comment “…was obviously not true from her records”.  He then goes on to say that “…there appeared to be a muddling of her various assault experiences”.

27. [27]
    The report further sets out in some detail the applicant’s description of her “worst experiences” of which there were “…a lot of ‘worst ones’” including at least one it appears which occurred after the assault the subject of this application. (My emphasis).^[7]

28. [28]
    Dr Flanagan states in the report:

“She is suffering from either Chronic Depressive Disorder with Post Traumatic Symptoms or Chronic PTSD with comorbid Depression.  The severity is in the upper end of the moderate range.”^[8] 

29. [29]
    As I have adverted to in paragraph [24] hereof a crucial element in this type of application, where it is alleged that mental or nervous shock has been suffered, is the extent to which the “current” condition has been caused or contributed to by the injury the subject of the offence of which the respondent has been convicted.

“Mental or nervous shock”

30. [30]
    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” as distinct from “… fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraphs [15, [17] and [21] respectively.

31. [31]
    A psychiatric assessment of the applicant was made by Dr Flanagan, psychiatrist, on 8 March 2004 (more than 12 years post injury) and detailed in his report dated 12 March 2004 referred to in paragraph [21] above.

32. [32]
    Dr Flanagan states under the heading “Causation” on page 4 of his report:

“A major cause of her disorder is repeated bashings around head and face in which she has sustained multiple fractures.  Most of the bashings were at the hand of her partner.  She nominates three of these as being the most psychologically traumatic of which one was the index assault, for which her partner was convicted.  The three experiences seem to overlap in her memory, which is not uncommon with traumatic memories.  There may have been some degree of concussion.  One can only estimate that the index assault represented approximately 20-30% of the total trauma.”

Causation

33. [33]
    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.

34. [34]
    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”.

35. [35]
    This test appears to have been approved by the Court of Appeal in Steinback v Steinback [2001] QCA 12.

36. [36]
    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”.

37. [37]
    His Honour finally concluded that the proper approach on causation under the Code should be that where the offence or offences “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.”^[9]

38. [38]
    I agree with his Honour’s analysis and the principle set out which I followed in the matter of Speechley v Baynes [2004] QDC 408 (unreported judgment of 17 September 2004). 

39. [39]
    The applicant’s solicitor, Ms Fadden, submitted in both oral and written submissions that I should adopt the approach of His Honour Judge McGill SC and find that the index assault “materially contributed” to the disorders suffered by the applicant. In respect of the applicant’s quantum of damages I am also referred to four authorities, namely:

• R v N, ex parte N [2002] QSC 290;
• Fourmile v O'Burns [2004] QSC 207;
• Donald v Bernard (unreported District Court judgment, Trafford-Walker SJDC, 13 August 2004); and
• Reno v Cudmore (unreported District Court judgment, O'Brien DCJ, 24 June 2004).

40. [40]
    Ms Fadden concedes, however, that it would not be appropriate to assess compensation on the basis that the totality of the applicant’s psychiatric injury is applicable to the index assault. To this end, she submits that a figure of $15,000.00 would represent an appropriate assessment of the applicant’s compensation under this head (representing 75% of the prescribed amount of $20,000.00).

41. [41]
    On the issue of causation I have come to the conclusion that it is possible in this matter to apportion or separate the effects of the index assault from the other instances of assault and trauma to which the applicant has been subjected over a prolonged period, as distinct from concluding that the index assault alone could be said to have “materially contributed” to the applicant’s condition the subject of the claim.

42. [42]
    This case can be clearly distinguished from Nicholls and Speechley (supra) where the subject condition in each of those cases arose out of conduct which did not continue or was not subsequently repeated as in the instant case.

43. [43]
    Here the applicant sustained further injuries of a more serious nature, approximately 4 months after the index assault and continued to be the subject of beatings of varying severity for years afterwards in 1992, 1995 and 2002 respectively as described in Dr Flanagan’s report.

44. [44]
    In my opinion it would be totally unrealistic to conclude that these subsequent attacks and beatings would not have contributed significantly to the applicant’s diagnosed condition, more particularly when she has stated that she “…couldn’t remember very much about the assault of 19.3.92. She had been bashed so many times before and since” (paragraph [26] above).

45. [45]
    I am therefore of the opinion that the index assault is responsible for not more than 25% of her diagnosed condition and her compensation under this head should be assessed on this basis only.

Order

46. [46]
    Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the injuries she sustained on 19 March 1992 as follows:

47. [47]
    I therefore order that the respondent pay compensation to the applicant in the sum of $7,500.00 as set out above.

48. [48]
    I am also satisfied that the applicant is entitled to her costs of and incidental to this application and I further order that the respondent pay the applicant her costs of and incidental to this application to be agreed or assessed on the standard basis under the District Court scale of costs where the amount recovered is less than $50,000.