Everitt v Owens[2004] QDC 517

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Fred Ian Douglas Everitt, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injuries he sustained on 17 July 2003 arising out of the criminal conduct of the respondent, Craig Owens, who was convicted by this court on 14 September 2004 at Mount Isa for assault occasioning bodily harm to him.  The respondent is currently serving a term of imprisonment in relation to this matter and service of the material has been effected.

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

1. (a)
   two affidavits of the applicant sworn 23 May 2004 and 23 November 2004 respectively and both filed 3 December 2004;

2. (b)
   the affidavit with exhibit of Peter John Stoker, psychologist, sworn 18 November 2004 and filed 3 December 2004;

3. (c)
   two affidavits with exhibits of Anthony Harold Hyde Bailey, solicitor, sworn 22 October 2004 and 10 November 2004 respectively and both filed 3 December 2004; and

4. (d)
   the affidavit of service of Anthony Vernon Longson sworn 2 December 2004 and filed by leave on 9 December 2004.

Facts

3. [3]
   On 17 July 2003, the applicant was drinking at the Albion Hotel Normanton from 5pm before moving to the Purple Pub where he met with others and continued drinking.

4. [4]
   At the time of the incident the subject of this claim (“the index assault”) the applicant was drinking from a glass when the respondent approached the applicant and pushed the glass with his hand into the applicant’s mouth. The applicant felt the glass smash into his face lacerating his mouth and causing it to bleed. The applicant was spitting glass fragments out of his mouth and could feel blood coming from his mouth.

5. [5]
   It appears that immediately after the assault the respondent was restrained by his father and removed from the pub. While the respondent contended that he did not intend the result he accepted at sentence that the applicant’s injuries were a foreseeable consequence of his actions.

6. [6]
   The applicant did not seek immediate treatment for his injuries but was given “some free drinks from the barmaid”. It was not until the next day that the applicant attended at the Normanton Hospital for treatment.

Applicant’s contribution

7. [7]
   In assessing an award for compensation under the Act the court may take into account the degree of contribution (if any) on the part of the applicant for the injuries sustained (see s 25(7) of the Act).

8. [8]
   It would appear that the applicant and the respondent had known each other for some 13 years but there had been a “falling out” between them some years prior to the incident as well as a more recent disagreement over an alleged debt.

9. [9]
   In any event there is no material before me to indicate that the applicant in any way provoked or contributed to the assault and I find accordingly.

Injuries

10. [10]
    Exhibited to the affidavit of Anthony Harold Hyde Bailey sworn 22 October 2004 is a report from the Normanton Medical Centre in the form of a statement by Christopher Paul Gilford which states that when the applicant attended the Normanton Hospital on 18 July 2003 he:

“was examined by Dr Yogeshwar Gangrade … (who) found the following injuries:  He had multiple small lacerations to his mouth, mainly his lower lip.  He was advised that the wounds did not need sutures.  He was advised to return to get his mouth checked in a few days.”

He was examined at the Hospital again on 24 July 2003 when it is reported that the applicant said his mouth was still sore but on examination the wounds were healing and the examining doctor “…did not see any glass fragments”.

11. [11]
    In his affidavit sworn 23 May 2004 (10 months post incident) and his Victim Impact Statement signed 8 September 2004^[1] (14 months post incident), the applicant states that he was in severe pain for about 2 weeks to a month following the assault and was prescribed medication for pain relief.

12. [12]
    He deposes in his affidavit that the blow of the glass hitting his mouth loosened four of his front teeth on his bottom jaw. There is no reference to teeth either by way of complaint by the applicant or observation by the examining doctor in the Normanton Hospital records as reported by Dr Gilford, nor has there been any other medical evidence placed before the court in respect of the current condition of the applicant’s teeth or their prognosis.

13. [13]
    The applicant also claims for “facial disfigurement (severe)” which is referable to his raised bottom lip lacerated by the initial impact of the glass to his mouth.

14. [14]
    The applicant further claims for alleged “mental or nervous shock” referred to in the report of Peter Stoker exhibited to his affidavit sworn 18 November 2004.

Mental or nervous shock – causation

15. [15]
    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].

16. [16]
    A psychological assessment of the applicant was made by Peter John Stoker, psychologist, on 23 May 2004 at Normanton (10 months post injury) and detailed in his report of 18 November 2004.^[2]

17. [17]
    Mr Stoker has summarised the applicant’s family circumstances and history which highlight a degree of instability in various ways including his father being “…an abusive alcoholic and a strict disciplinarian. He was emotionally and physically abusive to Fred and his brother. He is still angry with his father. He feels he did not have a proper childhood when compared to other people. He suffered some posttraumatic stress disorder and used Cannabis to erase the memories and images”.^[3]  In addition the applicant has had 3 de facto relationships.

18. [18]
    Mr Stoker’s report also states that the applicant:

• “Is presently unable to see his father, who lives in Whyalla, South Australia, as he has too much work on and is waiting for money to come in;
• He did not take time off post assault. He could not afford not to keep working;
• He uses Cannabis on a daily basis to medicate himself;
• Three years ago he was fined $800 for possession of Cannabis”.

The report further sets out a series of alleged “psychological effects of the assault.^[4]

19. [19]
    Mr Stoker finally expresses the opinion that:

“…as a consequence of the index assault, this man is suffering from a Posttraumatic Stress Disorder” (and that) “…he suffered a moderate degree of mental and nervous shock and his percentage psychological impairment is in the upper level of the moderate range”, (but that) “ his prognosis is fair to good.  With counselling and the passage of time, I expect his posttraumatic stress disorder to gradually remit”.

20. [20]
    The applicant’s Victim Impact Statement seems grossly disproportionate to the description and supporting evidence of his injuries and I find it impossible to relate all of the alleged “effects of the assault” to the incident of 17 July 2003 in the absence of further empirical evidence confirming the nature and extent of the assault and any follow-up medical treatment therefor.

21. [21]
    The issue of whether an applicant’s alleged psychological condition is caused by the incident for which compensation is claimed 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.

22. [22]
    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.

23. [23]
    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”.

24. [24]
    This test appears to have been approved by the Court of Appeal in Steinback v Steinback [2001] QCA 12.

25. [25]
    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”.

26. [26]
    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.”^[5]

27. [27]
    I agree with his Honour’s analysis.

28. [28]
    I am therefore satisfied that the injury to the applicant on 17 July 2003 “materially contributed” to his diagnosed Posttraumatic Stress Disorder and his compensation should be assessed on this basis.

Categories of injuries

29. [29]
    Counsel for the applicant in written submissions^[6] has listed the applicant’s injuries under the following categories of injury in Schedule 1 of the Act, namely:

1. (a)
   Item 26 – Stab wound (severe) 15% - 40% Suggested 25%;

2. (b)
   Item 28 – Facial disfigurement (severe) 10% - 30% Suggested 20%;

3. (c)
   Item 32 – Mental or nervous shock (moderate) 10% - 20% Suggested 20%

30. [30]
    Mr Stoker must necessarily base his opinion largely on the applicant’s narrative to him as to the applicant’s feelings and alleged consequences of the index assault but when the circumstances and aftermath of the assault are analysed I do not accept that its consequences are as severe as the applicant alleges. The basis for my coming to this conclusion is as follows:

• The physical injuries were not of a serious nature;
• The applicant continued to drink at the bar after the assault and waited until the next day before seeking medical treatment;
• The medical report states that the applicant suffered “…small lacerations to his mouth” which did not need stitches and when he was examined 6 days later “…the wounds were healing” with no reference to any injury or damage to teeth;
• The photographs of the applicant taken by the police department on 18 July 2003 (the day following the index assault) show the applicant’s mouth to be clean with no discolouration of the gums when compared with the photographs taken on 23 May 2004, 10 months later;
• The absence of any other medical evidence as to complaint or treatment for further problems in respect of the alleged injuries;
• The applicant’s troubled and unstable family background resulting in his suffering “some posttraumatic stress disorder” at an earlier time;
• His apparent consistent use of cannabis well before the assault;
• The inconsistencies in his employment problems post assault (at one time stating “he has too much work on” and on another occasion that his business “has gone under”).

31. [31]
    In all the circumstances, while I accept that the index assault has contributed to the applicant’s diagnosed posttraumatic stress disorder I do not accept that the diagnosis qualifies as “moderate” under Item 32 of the Schedule but rather should be classified as “minor” under Item 31 and I assess it as 8% of the scheme maximum.

32. [32]
    In respect of the applicant’s physical injuries I am of the opinion that his alleged “stab wound” would more appropriately fit under Item 24 not 26 and his facial disfigurement or bodily scarring under Item 27 not 28.

33. [33]
    Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on 17 July 2003 as follows:

34. [34]
    I therefore order that the respondent pay compensation to the applicant in the sum of $13,500.00 as set out above.

35. [35]
    In accordance with section 31 of the Act, I make no order as to costs.