DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Peter Ivan Matich claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged bodily injury he sustained arising out of the criminal conduct of the respondent, Troy Cameron Matich, who was convicted by the District Court at Brisbane on 29 November 2002 for the offence of assault occasioning bodily harm to the applicant on 5 December 2001.

2. [2]
   In accordance with the order for substituted service made by this court on 13 February 2006 the applicant’s solicitors sent a copy of the originating application and supporting affidavit material to the respondent’s last known address and also caused an advertisement to appear in The Courier Mail newspaper on 23 May 2006 to perfect service on the respondent of the material before the court.^[1]Despite those efforts there was no appearance for the respondent at the hearing.

3. [3]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

1. (a)
   the affidavit with exhibits of the applicant, sworn 27 July 2005;

2. (b)
   the affidavit with exhibits of Jerzy (George) Stanislaw Domalewski, psychologist, sworn 28 July 2005 and filed 18 November 2005;

3. (c)
   the affidavit with exhibits of Dr Malcolm Wallace, orthopaedic surgeon, sworn 28 July 2005 and filed 18 November 2005; and

4. (d)
   the affidavit with exhibits of Rebecca Margaret Dunlop sworn 30 May 2006 and filed by leave on 5 June 2006.

Facts

4. [4]
   The respondent (who is the applicant’s son) and his brother Kane attacked the applicant when he returned home on the night of 5 December 2001. The respondent hit the applicant in the upper right arm with a baseball bat. The applicant remembers feeling “severe pain to my upper arm” and made it to the stairs of his house when his wife came out to advise that the police had been called. The respondent and his brother then decamped and later the police arrived.

Injuries

5. [5]
   The applicant claims compensation for physical injuries suffered by him as follows:

“(a)Severe bruising to upper right arm;

(b)Hypervigilance;

(c)Depression;

(d)Sleeplessness;

(e)Paranoia;

(f)Flashbacks; and

(g)Anxiety.”^[2]

6. [6]
   The applicant was examined by a doctor at his house after the incident and then had his arm x-rayed at the Princess Alexandra Hospital where it was observed that there were “no broken bones but severe bruising”^[3].

7. [7]
   The applicant was examined by Dr Malcolm Wallace, orthopaedic surgeon, on 20 May 2005 (approximately four and a half years post-injury) who prepared a report dated 20 June 2005^[4]in which he opined:

“Mr Matich has sustained an injury to his right arm as a result of a blow from a blunt object consistent with a baseball bat. He has now reached maximum medical improvement and I do not believe he requires any surgical treatment but he should undergo x-ray of his right elbow as there is a lack of full extension in the right elbow.

Mr Matich also complains of symptoms that are suggestive of carpal tunnel syndrome in the right upper limb…

Mr Matich’s injuries are now to be considered to be permanent and will not change for the foreseeable future.

Mr Matich has suffered a significant degree of pain and swelling associated with the attack which also includes some anxiety and post-traumatic stress.

Mr Matich has demonstrated reduction in his ability to do his previous work as a beef boner but is unlikely to have any significant affect on his other activities of daily living.

According to the compensation Table attached he has injury number 2 which is severe bruising, allowing between 3-5% of the scheme maximum and he also has injury 31 suffering from mental and nervous shock and this should be separately assessed by a suitably qualified practitioner.”^[5]

8. [8]
   The applicant described his injuries at paragraphs [7] and [8] of his affidavit as follows:

“As a result of this assault, in particular, the injury I sustained to my right arm, I was forced to give up my job as a beef boner. I have had to change jobs and now work on a casual basis resulting in a substantial decrease in my pay. I am also unable to work for long periods due to pain, discomfort and weakness in my right arm. This decreases my ability to work overtime and denies me the opportunity of increasing my earning capacity.

After the assault, I was unable to work for two (2) to three (3) months while I waited for the swelling and bruising of my right arm to subside.”

9. [9]
   The applicant concedes that it is unclear whether the symptoms of carpal tunnel syndrome diagnosed by Dr Wallace “are a direct result of the attack”^[6], however it is submitted by the applicant that the court should compensate him for the “severe bruising” he suffered to his upper right arm as a result of the incident. It is submitted that an assessment of compensation for “severe bruising” under the Act must be one of the “most severe cases” but that does not mean that the applicant “would have to be beaten black and blue”: see Dooley v Ward [2000] QCA 493.

Mental or Nervous Shock

10. [10]
    The applicant also claims compensation for a psychological injury to himself arising out of this attack by the respondent.

11. [11]
    The applicant was assessed by Mr George Domalewski, psychologist, when he presented at interviews on 7 and 13 October 2004 (almost 3 years post injury). Mr Domalewski has provided a report dated 17 October 2004 which is Exhibit “JSD2” to his affidavit filed 18 November 2005.

12. [12]
    Mr Domalewski opined:

“Apart from physical injury, Peter has suffered psychological problems as a result of the attack. His symptoms are indicative of posttraumatic stress disorder. After the attack Peter experienced poor sleep patterns, nightmares, flashbacks, anxiety, hypervigilence, fears for his personal safety and that of his wife. He suffered depression and withdrew from society and in his words ‘lived as a hermit’.”^[7]

13. [13]
    Mr Domalewski further observes:

“He feels embarrassed by the attack and feels he cannot tell people, as it was his sons who perpetrated this act. Due to his feeling of hurt and embarrassment he no longer wants to have contact with his boys. Previously he lost contact with his daughter. He does not wish to deal with this issue and feels ill at ease seeking compensation, as he fears repercussion.

There have been instances since his son’s release where he and his partner have been intimidated by the boys. As mentioned previously Peter feels unsafe. He is fearful and resists answering the telephone. Since the attack Peter’s condition has improved, however I would still assess his symptoms as moderate.”^[8]

14. [14]
    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.

Applicant’s Contribution

15. [15]
    In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

16. [16]
    I have referred to the circumstances of the incident in paragraph [4] above and I am of the opinion that the applicant’s behaviour at the relevant time did not either directly of indirectly contribute to the injury complained of by him.

Categories of Injuries

17. [17]
    The applicant’s injuries fall under the following categories of injury in Schedule 1 of the Act, namely:

1. (a)
   Item 2 – Bruising/laceration (severe) (percentage of scheme maximum 3% - 5%); and

2. (b)
   Item 32 – Mental or nervous shock (moderate) (percentage of scheme maximum 10% - 20%).

18. [18]
    Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on 5 December 2001 as follows:

19. [19]
    I therefore order that the respondent pay to the applicant the sum of $14,250.00 by way of compensation for the injuries he sustained.

20. [20]
    In accordance with section 31 of the Act, I make no order as to costs.