DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”).  On 31 March 2000 the respondent pleaded guilty to one count of assault occasioning bodily harm which was committed on the applicant on 12 September 1999.  Accordingly, there is an entitlement to compensation.  The application was filed on 28 March 2003, just within time under the Act, although the affidavit material in support was filed only on 14 November 2005^[1].  The application and affidavits in support were served on 22 November 2005.

Circumstances of the offence

2. [2]
   The applicant was at home on that night when he was awoken by the sound of someone trying a door handle into his room from outside. He saw out the window someone outside who then went away. He went out of the house himself, and later went outside with a dog lead and looked around, and saw a car driving past the front of his house a number of times. He walked towards the car and threw the lead at it, hitting the driver’s side door. He went back inside and heard the car driving past again, and then heard something land on his roof. He changed and went out again, and saw two men at the front of his house, one of whom was the one he had seen earlier outside the door. He went into his yard where they grappled and he fell. When he got up, they both ran off and he chased them down the street where they both got into the car again and drove off. He then realised that he had suffered an injury to his face. He called the police and provided the registration number of the vehicle.

3. [3]
   The respondent was sentenced on the basis that he was the driver of the vehicle, and that he had stopped and let the other two out in circumstances where he was criminally responsible for the assault, but where he was not one of those who participated in the assault himself. He subsequently made a statement to the police in which he provided some information about the others involved, but at the time of sentencing they had not been prosecuted.

The injury

4. [4]
   The applicant suffered a nine centimetre laceration to the right side of the face, for which he received medical treatment and which has left him with a scar which was shown in some photographs. The scar is readily visible across the cheek a little below the eye. After the incident the applicant went to the Ipswich Hospital where he underwent some surgery. The doctor who treated him expressed the opinion^[2] that he had been left with an extensive scar causing an obviously visible cosmetic defect and some impairment in sensation around the right angle of the mouth and some impairment of muscle function in the same zone.

5. [5]
   In August 2005 the applicant saw a plastic and reconstructive surgeon who described^[3] the scar as mature but with a significant depression throughout its length.  Facial animation was said to be normal, although a smile or a frown accentuated the scar.  There was some minor numbness in one area, and some minor loss of hair follicle structure.  The doctor described the scar as being 9 per cent on the AMA tables.  He said its appearance was accentuated by deep tissue contour deformity.  He described it as a significant scar.  He expressed the opinion that it could be improved with surgery, although unfortunately did not say how much.  He did say the surgery would cost over $4000.

6. [6]
   The applicant was seen by a psychiatrist for the purposes of a report on 24 August 2005^[4].  The psychiatrist expressed the opinion that the applicant showed no evidence of a diagnosable psychiatrist disorder in the aftermath of the assault.  He noted that the applicant had a long history of chronic fatigue syndrome which had itself given rise to some frustration for which he had received some psychiatric treatment.  The psychiatrist thought that there was some ongoing mild anxiety which was more related to the chronic fatigue syndrome and its consequences.  He noted that the applicant had reported some increased anxiety associated with irritability, frustration, hypervigilance and feelings of guilt, self consciousness about the scar with some associated desire to avoid people, and an increase in security consciousness which led to more security being installed at his home.  The psychiatrist expressed the opinion that any anxiety associated with the actual assault had fully settled.

7. [7]
   The applicant in his affidavit said that after the offence he felt self conscious, and for a time was restricted somewhat by the need to care for the wound. He was concerned about the risk of the assailants’ coming back, and installed additional security lights. He said initially he was reluctant to venture out of the house, although it appears that this was more concerned with the reaction that his appearance might have on other people. He said that his concern about security about the house was no longer significantly affected by the offence. He still experienced some anger in being embroiled in the event and the subsequent proceedings, and some feeling of inadequacy in not having effectively defended himself.

Mental or nervous shock

8. [8]
   There are two aspects to the applicant’s reaction to the incident; there was evidently some embarrassment about his physical appearance as a result of the scar, and there was some anxiety and increased vigilance, some embarrassment that he did not defend himself more effectively, and evidently later a feeling of unhappiness about the criminal justice system. Some embarrassment is likely to be associated with any case of facial scarring and in my opinion unless it amounts to a separate psychiatric disorder should be treated as part of the physical injury to the face, or the consequences of that in terms of scarring.

9. [9]
   It was submitted and I accept that the concept of mental and nervous shock is capable of extending beyond a recognised psychiatric disorder: Ferguson v Kazakoff [2001] 2 Qd R 320.  In that case Thomas JA expressed the opinion that it would unduly limit the term if we were confined to conditions that are recognised as psychiatric disorders:  page 324.  On the other hand, His Honour went on immediately to add:

“Conversely it overstretches the term to use it as a source of additional compensation for natural human emotions felt by people who cope adequately with the aftermath of an offence and are able to get on with their lives.”

10. [10]
    Elsewhere in his reasons, His Honour emphasised that for something to amount to mental or nervous shock it must be more than a normal reaction to trauma. At page 323 he said:

“The term mental and nervous shock can connote something more than ordinary or normal reactions … The term was always used to describe a condition beyond ordinary reaction to trauma.”

11. [11]
    At page 324 he said, before the passage referred to earlier:

“Both in ordinary usage and in the context of civil nervous shock cases an abnormal condition or illness seems to have been contemplated … Clearly, the ordinary usage of the term has been to describe situations of 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.”

12. [12]
    At page 325, His Honour said:

“It is extremely difficult to define the point at which mental consequences to a claimant from a crime become compensable as ‘mental or nervous shock’.  I consider, however, that if noting more is shown than fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions, the claimant has not shown that he or she suffered nervous shock … In the present case the consequences of the offence to the applicant demonstrate real problems which have continued for more than three years after the attack.  They are at the periphery of a diagnosable psychiatric condition.  They affect his life and conduct, and include symptoms such as sleep disturbance and some behavioural abnormality.  They are in my view serious enough to comply with the description ‘mental or nervous shock’.”

13. [13]
    In the present case in my opinion the applicant’s reaction to the incident was no more than a normal human reaction to an unpleasant and frightening event. It would be natural in response to such an incident to react in the way the applicant has described. One would expect some increased vigilance, which persisted according to the psychiatrist’s report for a couple of years after the assault. The matter is slightly complicated by the existence of an independent psychiatric reaction to another condition, but on the basis of the psychiatric evident, there has been really no lasting adverse effect on the applicant, and such effect as there was from the assault was in my opinion no more than a normal human reaction. There is nothing to indicate that the applicant’s condition was at the periphery of a diagnosable psychiatric condition. In my opinion, the facts in Ferguson are distinguishable, and I am not prepared to accept in the present case that the applicant suffered something which amounted to mental or nervous shock for the purposes of the Act.

Comment

14. [14]
    I am prepared to accept the authority of Ferguson in the absence of any authoritative determination by the Court of Appeal, although with some reluctance.  It seems to me unfortunate that the test for whether something amounts to mental or nervous shock for the purposes of the Act depends on whether the applicant falls on one side or another of a point which His Honour conceded was extremely difficult to define:  page 325.  If the test were the existence of a recognised psychiatric disorder, that would at least be a straightforward enough test for courts to apply, and it is not altogether clear to me why something which does not amount to a recognised disorder should amount to an injury for the purposes of the Act.

15. [15]
    His Honour referred to the decision in Hill v Horne^[5] which was concerned with section 663A of the Code, and which in that case did adopt that convenient and practical test.  It is not at all clear to me why the legislature, in the context of what was deliberately intended to be a limited scheme of compensation for the victims of violent crime^[6], should be intending to lower the bar for psychiatric injury to a point where it included things that did not amount to a recognised psychiatric disorder^[7].  Perhaps some day there will be a more authoritative decision in relation to this issue, but in the meantime, the decision in Ferguson seems to be commonly followed in practice in the courts, and for that reason it would be unfair to the applicant for me to depart from it.

The respondent’s role in the offence

16. [16]
    Submissions were also directed to the question of causation, but in my opinion in relation to the physical injuries there is no difficulty about this; the offence of which the respondent was convicted involved as an element doing the physical injury to the applicant. Clearly, therefore, the injury was caused by the commission of the offence. There is, however, a related issue, which arises because in the present case on the evidence at sentencing, and indeed on the evidence now before me, the applicant was one of three people involved in the assault, and was not the one who participated in the actual attack on the applicant. The respondent was sentenced expressly on the basis that he had a relatively minor role in the incident^[8].  The question arises whether in these circumstances it is appropriate to make an award of full compensation based directly on the injury against the respondent.

17. [17]
    This is not a matter which is directly dealt with by the Act, but there are some provisions in section 26 which throw some light on the approach of the legislature. Subsection (3) provides the starting point that ordinarily only one compensation order may be made in favour of an applicant because of a substantially single incident, or a substantially single state of injury. That order may be made against more than one convicted person (subsection (5)) and it may provide for separate liability of each convicted person scaled according to the person’s direct and material contribution to the injury: subsection (6)(a)^[9].  Subsection (7) then provides that if each of more than one convicted person directly and materially contributed to injury, a court may make a compensation order against each of more than one of the convicted persons.  If such orders are made against more than one convicted person, the orders must provide a separate liability for each for an amount scaled according to that convicted person’s contribution to the injury:  subsection (8)(b)(i).

18. [18]
    Accordingly in the present case, if the respondent were not the only person who had been convicted in respect of this assault, it would be permissible, if only one order were being made, to distribute the total amount of compensation payable in respect of the injuries between the convicted persons in a way which would adequately reflect the respondent’s minor role in the offence. If this were a separate application against the respondent, but there were another convicted person against whom an application and therefore a compensation order could be made, subsections (7) and (8) would appear to require that the liability of the respondent be scaled according to his contribution to the injury.

19. [19]
    I accept, of course, that at the present time there are no other convicted persons, at least so far as I know; that was the situation at the time at which I sentenced the respondent. However, there is no statute of limitations, and in theory at least at any time in the future either of the other individuals, who were more directly involved in the assault than the applicant, could come to be convicted persons so that separate applications for compensation could be made against them.

20. [20]
    If such a situation were to arise, it could well produce an odd result if I ignore the fact that the respondent had only a minor role in the offence. If I award full compensation for the injury against this respondent, and subsequently one or perhaps both of those directly involved in the assault came to be convicted and applications were made against them, subsection (8) would apply and the court would be required to scale their separate liability on the basis of their contribution to the injury, but that would not have much effect because they were the ones who directly caused it. That could result in an award of compensation much greater than the award that would have been made if there had been only one compensation order against all of them.

21. [21]
    No doubt if the only consequence of an order that I make is an application under division 3 of part 3 of the Act, this will not matter, because any necessary adjustment to avoid overcompensating the applicant can be made by the State at that time, and the applicant would not be prevented from obtaining compensation because the offenders directly involved were not convicted, indeed because they were not prosecuted. However, the proceeding before me is a claim for an order that money be paid by the respondent personally, and indeed I understand an applicant is required to have exhausted attempts to enforce a compensation order against the respondent personally before an application under division 3 can be made^[10].  There is certainly nothing to stop an applicant from actually enforcing an order for payment of compensation against the respondent personally, if that is possible.  For all I know, the respondent may be worth executing an order against, even though he may not be so well off that he can afford to pay for legal assistance to resist the application.  In these circumstances, in my opinion it is appropriate to approach an application of this nature on the basis that an order made should be fair to the respondent as well as being fair to the applicant.

22. [22]
    I accept that in the absence of any other convicted person section 26 does not apply directly, although I think it provides some guidance as to the correct approach.  Nevertheless, in my opinion section 25(7) is wide enough for me to take into account the fact that this respondent was one of three individuals involved in the attack on the applicant, and that he had a relatively minor role in the incident.  Subsection (7) is not confined to the example given in the section, and in my opinion those circumstances are something which are relevant and therefore something which may be taken into account in deciding what amount should be ordered to be paid for the injury.

23. [23]
    In all the circumstances in my opinion it is appropriate to make an award of compensation for the applicant which is reduced by the fact that the respondent was one of three people involved in the attack on the applicant, and more importantly, that he had a relatively minor role in the incident. In my opinion it would not be fair to the respondent to make an order that he pay the full amount of compensation, determined in the way indicated by section 25, in respect of the injury suffered at the hands of one or both of the other assailants involved in the commission of the offence.  Accordingly, I propose to order that the respondent pay one-quarter of the compensation assessed in respect of the applicant’s injuries under the Act.

Single state of injury and assessment

24. [24]
    The next question that arises was whether there ought to be separate assessments under items in the schedule in respect of the laceration that was the original injury to the applicant’s face, and the scar which remains to his face. The court is required to assess compensation, for an injury specified in the compensation table in schedule 1, by reference to that table: section 25(4).  In MR v Webb [2001] QCA 113, Wilson J with whom the other members of the court agreed said [at 16]:

“An applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so overcompensating the victim.”

25. [25]
    This passage was cited with approval in Zaicov and Anor v Jones [2001] QCA 442 at [25].  In that case an award was made under item 26 (Gunshot Wound – Severe), and Holmes J noted that there was no separate assessment in respect of surgical scarring, adding that this is something which could be taken into account as part of the gunshot wound, or be made the subject of a separate (modest) award.

26. [26]
    The presence of items 27 and 28, dealing with facial disfigurement or bodily scarring, in schedule 1, is in some respects curious. It is not in itself an injury, but rather the consequence of an injury. In the ordinary case there will be some other injury to the face or body which after it heals leaves scarring^[11].  One common cause of scarring is burns, and burns do not themselves feature as an injury in schedule 1.  The other curiosity about these items is that, if read literally, they would exclude scarring to the face and disfigurement of the body; in practice they seem to be treated by the courts as applicable to scarring or disfigurement wherever it occurs^[12].  I do not consider that the items are excluded because in the present case the scar was to the face.

27. [27]
    In my opinion the presence of these items in the schedule is a legislative recognition of the fact that the disfigurement or scarring may in a particular case achieve a sufficient significance to justify its being treated as an injury in itself, and be the subject of separate and additional compensation. This is not something which has to happen in every case, as shown by the decision in Zaicov (supra), and it remains important to ensure that there is no double compensation.

28. [28]
    In the present case the injury itself was only a laceration. It is therefore appropriate to compensate under items 1 or 2. Although there was only one laceration, it was to the face, and it was relatively long and deep. In those circumstances I think it qualifies as a severe laceration, although obviously there could be much more significant physical injuries which fell within item 2, I allow 3 per cent for the laceration, disregarding any considerations of the effect of the injury once it has healed.  Such an award in my opinion would not adequately accommodate the significance of the scar to the applicant’s face, nor indeed would a higher award under item 2.  In my opinion, this must have been the sort of case that the legislature had in mind when including the separate item for facial disfigurement or bodily scarring in the schedule, and in my opinion in the present case it is appropriate to allow a separate amount under one of those items.

29. [29]
    The applicant has been left with a significant and obvious scar in a prominent position, which involves some depression to the cheek, and which produces further distortion when he smiles or frowns. There is also some minor numbness and other physical consequences. The applicant is 49 years of age. The scar could not be concealed, but on the other hand it is susceptible of surgical improvement. Unfortunately, it is not clear how much improvement could be achieved. The scar although obvious is not particularly ugly. It would not be difficult to imagine much worse examples of scarring or disfigurement, for the worst of which the maximum allowance under item 28 is 30 per cent of the scheme maximum.  Bearing this in mind, in my opinion this qualifies as moderate scarring.  In my opinion it is more than minor, because it is on the face and because it is quite prominent, but it is not severe because there is only one scar, it is not ugly, and it is susceptible of surgical improvement.  Nevertheless, because of its prominence, and because of some uncertainty of the extent of the improvement available, I allow 10 per cent under item 27.

Contribution to the injury

30. [30]
    The next question which arises is whether there should be some reduction on the basis that the applicant contributed to his injuries. As I mentioned earlier, in the course of the incident at one point the applicant threw the dog lead at the car, and at the sentencing hearing I accepted there had been some damage done to the vehicle in this way, although minor, and that it was a little unrealistic to treat the attack as entirely unprovoked^[13].  Nevertheless, there was a significant time which elapsed between the damage to the car and when the co-offenders grappled with the applicant and injured him.  The violence shown by the co‑offenders was disproportionate to any violence offered by the applicant, and in addition they outnumbered him.  On the other hand, I suspect that if he had not used the dog lead in this way to damage the vehicle the attack would not have taken place.

31. [31]
    There is also the consideration that I am making a substantial reduction anyway for other reasons under section 25(7).  In view of that I will not make a further reduction in respect of the applicant’s contribution to the injury.

32. [32]
    The total of the percentage assessment comes to 13 per cent, which when applied to the scheme maximum produces an award of $9,750.  For reasons given earlier, I will order the respondent pay one-quarter of this amount, in the amount of $2,437.50.  I therefore order the respondent pay to the applicant $2,437.50 compensation in respect of the injury suffered by the applicant as a result of the offence for which the respondent was before the District Court on 31 March 2000.  There is no jurisdiction to make an order in respect of costs.