Callus v Fietchner[2005] QDC 292

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   This is an application for criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995. The applicant, Alana Ann Callus, was subjected to common assault and deprivation of liberty. The respondent, Irwin Glen Fiechtner, pleaded guilty to both charges on 4 May 2004. The offences occurred on 28 September 2003. The applicant was born on 2 September 1953 and is now 51 years of age.

2. [2]
   The respondent was known to the applicant. A schedule of facts was tendered at trial and on this hearing. The applicant has been invited by a Mrs. McNamara to have lunch with her and two other persons one of whom was the respondent’s nephew and his wife. The respondent has abused the applicant on the phone the night before and Mrs. McNamara was going to get a protection order against him. It seems that the respondent and Mrs. McNamara were involved in a property settlement dispute and that the applicant had refused to give evidence in favour of the respondent.

3. [3]
   The respondent got annoyed about this suggestion of a protection order. He got a gun. Mrs. McNamara heard the gun click twice. The respondent chased Mrs. McNamara and threatened to kill her. Mrs. McNamara ran into the study and locked the door. The respondent then turned his attention to the applicant, pointed the gun at her and threatened to kill her. She observed him trying to put a small bronze bullet into the breach. She ran to the study as well. Whilst both ladies were in the study, the respondent continued his harassment for what felt like “a couple of hours”.^[1]  The harassment included kicking the door.  Police were contacted from inside the study by telephone.  The ladies believed that the gun was loaded.  The bullet was in fact the firing mechanism for a nail gun.  The applicant would not have appreciated the technical aspect at the time and the fact that the gun could not be fired.  I am satisfied that the conduct of the applicant did not contributed in any material way to any condition from which she now suffers as a result of the said offences.

The Applicant’s evidence

4. [4]
   The applicant’s evidence is as follows^[2]:

"10.  I am in receipt of a Disability Pension. I was placed on this pension because I have suffered panic attacks and depression since the commission of these offences.

11.  Prior to that I was working part-time for Blue Care as a nurse and I had been in their employment for approximately eight (8) years. I have worked as a Nurse for my entire working life.

12.  The panic attacks were simply too severe for me to be able to continue working and holding people’s lives in my hands. I was not willing to risk patients if I had a panic attack whilst they were in my care

13.  In relation to these panic attacks, I did not suffer from them prior to the offences taking place. I found that they would just come on all at once and fear overcame me and I couldn’t control it. I would get distressed and find it hard to breathe, my heart was racing and I felt like it was never going to go away.

14.  As a result of these panic attacks I attended upon my General Practitioner, Dr Paul Mercer, and he placed me on lithium which I take every day, twice a day. I also take other medication which assists.

15.  The medication that I have takes the panic attacks away however it makes me very drowsy. I have also been taking sleeping tablets at night since the commission of this offence as I have simply been unable to sleep.

16.  Since the commission of these offences I no longer go out and socialise with my friends as I used to. When I go out now it is only if it is a necessity and I get what I want and then go straight home. Everything is an effort for me. Even seeing my doctor takes a lot of courage for me and I often cannot make it out of the house. I am hoping that this will eventually reduce in its severity and I will find it easier to go out in public.

17.  I used to visit my friends often and travel out to places witht hem however now my friends come and visit me. I do not feel safe going outside of the house and when I do venture out it tends to bring on panic attacks so it is a lot easier for them just to simply come to me.

18.  Whenever I go out I always have a friend or someone with me just in case I suffer from a panic attack. I am petrified of being by myself and this overcoming me.

19.  Given that we reside in the same area I am also worried that I may see the Respondent in the area and that would cause me extreme distress and concern for my safety.

20.  Since the commission of these offences I find that I cannot sleep unless I have a sleeping tablet. Initially I was having nightmares however, with the medication I find that these are reducing in their severity.

21.  These offences have really changed my entire life. I am no longer even confident driving my vehicle due to the medication I take and the drowsiness it causes me. Prior to the commission of these offences, I was a confident and social person.”

5. [5]
   The applicant gave details of her life prior to these incidents to Mr. Stoker, the psychologist.

Psychiatric effect

6. [6]
   The applicant claims mental and nervous shock. The maximum able to be claimed is some 34% of the amount of $75,000.00. That sum is reserved for the more serious cases.^[3]  The applicant had pre-existing problems.  It is clear from her statement and the medical evidence that the applicant has suffered from panic attacks since this incident.  She has been prescribed Efexor for that condition which did not exist prior to the incident.  Her general practitioner also prescribed lithium.

7. [7]
   In his written report of 4 August 2004^[4], the psychologist, Mr. Stoker, states :

“It is my opinion she is suffering from a Posttraumatic Stress  Disorder (Diagnostic & Statistical Manual of Mental Disorders – American Psychiatric Association [DSM-IV]) as a result of the index incident. 

She is also suffering from a Panic Disorder with Agoraphobia (DSM-IV). 

…

I note this woman has also had a number of other psychosocial stressor in her life, entailing infidelity by her husband, abuse as a child and serious medical problems (including suffering depression pre-morbidly).  

However, it is my opinion the index accident has had a significant impact on this woman’s life.

…

It is my opinion she suffered a severe degree of mental and nervous shock and her percentage psychological disability is in the lower-level of the severe range”.

8. [8]
   It is open to find, and I so do, that the subject offences have aggravated a pre-existing condition and further caused panic attacks. This condition by itself would probably attract compensation. In fact there is a diagnosis of post traumatic stress disorder for which she is entitled to be compensated.^[5]  In oral evidence, Mr. Stoker attempted to distinguish the effects of the subject offences from the pre-existing condition.  If this cannot be done, the applicant is entitled to be compensated for any injury which has materially contributed to her condition.^[6]  Where there is credible evidence of the extent of the aggravation, the applicant is limited to an assessment for that aggravation. 

Oral Evidence of Psychiatrist

9. [9]
   Mr. Stoker was cross examined on his report. The cross examination showed that he was confused between the usual percentage disability which medical practitioners attribute to an injury or psychiatric state and the schedule provided for under the Criminal Offence Victims Act^[7]:

“All right.  She also sought counselling, obviously, as a result of this more recent attack by her father in November pf 2002?  -- Well they said that she was – I don’t know if she actually said – she didn’t report to me she turned t counselling.  I think that report said she was going to get counselling.  Whether she got it or (sic)  not, I’m not sure.

All right. Well, it would be fair to say that – that the depression she already suffered prior to the incident contributed to a moderate degree to her ultimate symptoms; is that right?  --Yes, that’s correct.

It would be fair to say that the abuse of her father, sexual and violent physical abuse, even in more recent times, contributed to a very significant degree, to her current symptoms? – That’s correct.

And, it’s fair to say that the index incident contributed to about an equal degree as what her father – or what the abuse of her – meted out by her father has contributed? – Well, it’s – that is a very difficult question actually, because, you know, she was at the end of a gun that’s about to be loaded, and you think your life is about to expire.  I think there is a quantum difference between chronic abuse and that sort of situation.  I think she had some post traumatic stress prior to that, but I think the pain episodes and the agrophobia only developed after that incident.  And I think the situation she was in certainly contributed significantly.  Now I can’t say to what degree, but I think, significant degree on her presentation at the interview.

All right.  Well, you come up, finally with an opinion that she suffered a severe degree of mental and nervous shock.  How do you arrive at that? -  Well, you arrive at that through the Psychological Society’s way of looking at assessment of psychological impairment, which looks at global assessment of the things that she reported post incident.  And one of the things that she reported post incident, and was a significant difference, was the fact that she found it difficult to leave the house.

And, what scale do you adopt to come up with this severe.  Is there -----? – Yeah, there’s a scale of the Criminal Compensation Act, which says, severe is 20 to 32 percent.  I came up on the assessment by the psychologist’s recommendation of impairment as between 20 and 23.

…

Mr. Stoker, do you say that’s 20 and 23 per cent of – between 20 and 23 per cent of what?  -- Of her psychological impairment, is considered it to by the index incident.

I see.  So----? ---- But based,  mainly on the fact that now she can’t leave the house---               

Yes?----regularly.

Okay.  So, what you’re saying is that, taking her psychological impairment as a whole-----?----Yes.

-----between 20 and 23 percent of that whole psychological impairment, you can relate to the index incident; is that right -- That’s correct.

10. [10]
    The whole psychological impairment cannot be directly related to the schedule under the Act e.g. 100%. What has to occur is that the extent of the aggravation has to be given a percentage. Then, the court has to assess where it fits in under the schedule eg. 1% to 34%. In fact in re-examination, Mr. Stoker agreed with Mr. Kimmins that 20% of the applicant’s nervous shock component complaint was as a result of the index incident.

11. [11]
    In a case of KLW v ACH^[8], his honour Judge Robertson made the following comment:

“In asking a psychiatrist or psychologist to express an opinion in relation to a particular patient by reference to the schedule, is to misconceive what the scheme of the Act is intended to achieve… Expert witnesses should confine their opinions to diagnostic assessments acceptable within their fields of expertise, and not attempt to give opinions by reference to Schedule 1”.

12. [12]
    I agree with His Honours observations. The attempt to relate the extent of aggravation to the schedule in the present case has not been helpful. In fact on closer examination it appears that it was a percentage of the total disability. Having considered the matter, I would allow a 12% assessment of the Schedule viz. $9,000.00. This is approximately half of the moderate to severe range in the Schedule. As the applicant is to be compensated for the aggravation of her condition as identified by Mr. Stoker, it cannot be said that her severe condition is in a causal or legal sense totally related to the subject offences. The bases of the assessment were her statements to Mr. Stoker as referred to above and his opinion of the extent to which the index incident contributed to her over all psychiatric state.

Order

 It is ordered that the respondent do pay to the applicant the sum of $9,000.00 by way of criminal compensation pursuant to the Criminal Offence Victims Act for offences to which the respondent pleaded guilty on the 4 May 2004.