Hartley v Whitby[2006] QDC 27

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Phillip Leslie Hartley presently aged 29 years, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury he sustained arising out of the criminal conduct of the respondent, Stuart John Whitby, who was convicted by the District Court at Cairns on 9 September 2002 for grievous bodily harm to the applicant on or about 17 April 2000. The respondent is currently serving a term of imprisonment and was served with the application and supporting material but made no appearance at the hearing.^[1]

2. [2]
   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 17 July 2003;

2. (b)
   the affidavit with exhibits of Samit Seth, Solicitor sworn 4 September 2003;

3. (c)
   the affidavit with exhibit of Dr Stuart McDonald, Medical Practitioner, sworn 12 August 2003; and

4. (d)
   the affidavit with exhibit of John Mountford, Optometrist, sworn 29 July 2003 all filed on 8 September 2003; and

5. (e)
   the affidavit with exhibit of Luke Hatzipetrou, Psychologist, sworn 12 August 2005 and filed on 24 August 2005;

Facts

3. [3]
   At the time of the incident the applicant and respondent were inmates at the Sir David Longlands Correctional Centre. It seems that before the assault occurred on 17 April 2000 there had been altercations between the applicant and the respondent in the form of threats and intimidation but nothing more. On the morning of 17 April 2000 the applicant had been informed that the respondent wanted to speak to him. The applicant required the permission of the unit manager to do so. Whilst the applicant was waiting at the door of the office of the unit manager, the respondent approached the applicant with a shiv (a home-made knife described by the applicant as “about 20-25cm…more like an ice pick”^[2]) in his hand. The respondent then raised his right arm above his head and thrust it down and stabbed the applicant in the right eye before the applicant could react. Both the applicant and the respondent stumbled into the unit manager’s office. The applicant raised his forearm to protect his face and was then further stabbed in the forearm with the shiv by the respondent. The respondent repeatedly raised the shiv above his head and thrust it at the applicant causing several wounds to the applicant’s forehead, cheek and back. Prison officers then subdued the respondent and conveyed the applicant to the Princess Alexandra Hospital for treatment.

Injuries

4. [4]
   The applicant described his injuries on page 7 and 8 of his police statement which is Exhibit “A” to his affidavit as follows:

“As a result of this assault I have received a number of stab wounds to my back, chest, face and right arm. (I can’t recall during the attack when I was stabbed in the chest, but it may have happened when I was covering my face to protect myself). I have no sight in my right eye and I am experiencing a dull pain in this eye, which is continually weeping. I have been on painkillers since my arrival in hospital. I am uncertain as to whether I will regain sight in this eye or whether I will lost (sic) the eye….I also have bruising to my back and chest and pain in my right forearm.”

5. [5]
   A copy of Dr McDonald’s report which is Exhibit “A” to his affidavit details the treatment that the applicant received upon admission to the Princess Alexandra Hospital post-assault on 17 April 2000. Dr McDonald reports that the applicant was admitted “…with multiple stab wounds to the Anterior and Posterior Thorax and right arm together with a penetrating wound to the right eye”. The applicant underwent surgical examination of his right eye. The other stab wounds suffered by the applicant “were simply dressed”.

Loss of Vision

6. [6]
   As has been submitted on behalf of the applicant the major physical injury sustained during this incident by the applicant was the penetrating wound to his right eye. The applicant was immediately put under anaesthesia and preliminary repair surgery commenced on 17 April 2000. Dr McDonald’s report details that there was follow-up surgery, a vitrectomy and lensectomy, which took place when the applicant was readmitted on 9 May 2000.

7. [7]
   An ophthalmologist, Dr Phung Vu, states in a report signed 22 August 2000 that:

“Mr Hartley had intravenous antibiotics for 72 hours and underwent an examination under anaesthetic and primary repair of his left penetrating eye injury on 17 April 2000 at 8:00pm. On exploration of all quadrants he had a full thickness scleral laceration superiorly of about 7 mm with no vitreous incarceration. He also had a 9 mm curved full thickness scleral laceration at 6 o’clock. These were repaired with 9-0 nylon to the sclera with closure of the conjunctiva with 6-0 cat gut….

On 10 May 2000 he proceed to have a second operation to remove his traumatic cataract and vitreous blood. A right vitrectomy and lensectomy was performed with blood and early membrane formation delaminated off the ciliary body. There was no evidence of any retinal detachment at the time of the operation.

His postoperative recovery has been relatively uncomplicated and, although he is aphakic at the present time with a visual acuity in the right of count fingers which improves with a +9.00 sphere to 6/6, he is in the process of having further treatment for this. We envisage he will regain useful vision with a possible insertion of an intraocular lens in the future.”^[3]

8. [8]
   Dr McDonald’s report further details that the applicant was seen in the Eye Outpatients department at the Princess Alexandra Hospital on 26 April 2001 and was to be reviewed in November 2001. It appears that the applicant was then referred to Dr John Mountford, optometrist, who saw the applicant on 11 December 2001 after which he complied a report dated 16 February 2002 which is Exhibit “A” to his affidavit. The report details the following:

“External examination showed sutures across the surface of the right cornea. An aphakic contact lens was inserted into the eye and an over refraction was performed. This gave best-corrected visual acuity of 6/60 with no improvement. 6/60 is considered to be legal blindness. Therefore even with a contact lens in place the patient could not achieve adequate visual acuity to warrant the risk of wearing the contact lens. Also he found the lens uncomfortable to wear and at the completion of the consultation decided against proceeding further with the contact lens fitting.”

9. [9]
   As a result of the penetrative wound to the right eye, the applicant is now legally blind albeit that he has some vision out of the eye “…limited to counting fingers but improved with a pinhole to 6/36” when examined at the Princess Alexandra Hospital on 26 April 2001.^[4]

10. [10]
    No estimate has been given in percentage terms of the loss of vision the applicant has suffered but clearly it is substantial and doing the best I can on the information and medical evidence available, I assess his loss of vision at 80% in his right eye. On this basis the applicant is entitled to an assessment of compensation of $42,000.00 representing 56% of the scheme maximum under the Act.

Mental or Nervous Shock

11. [11]
    The applicant also claims compensation for a psychological injury to himself arising out of this attack by the respondent.

12. [12]
    The applicant was assessed by Mr Luke Hatzipetrou, psychologist, when he attended an interview on 1 April 2005 (almost 5 years post injury). Mr Hatzipetrou has provided a report dated 23 May 2005 which is Exhibit “A” to his affidavit.

13. [13]
    Mr Hatzipetrou opined that the applicant “was likely to suffer from this psychological distress and trauma which impacted on general functioning and the symptoms appeared to be clinically significant”.^[5]  The report goes on the state:

“Given the unexpected nature of the act and subsequent emotional disturbances, the degree of nervous shock was considered to be moderate and he was likely to experience symptoms consistent with an Acute Stress Disorder.”^[6]

14. [14]
    Although Mr Hatzipetrou ultimately concluded that the applicant’s nervous shock was moderate, he does concede however that “persistent and chronic symptoms” may have been present immediately following the incident and following for a period of at least six months.

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” 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.

Causation

16. [16]
    The topic has been the subject of judicial consideration and is comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls [2004] QDC 118.

17. [17]
    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”.

18. [18]
    This test appears to have been approved by the Court of Appeal in SAM v SAM [2001] QCA 12.

19. [19]
    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”.

20. [20]
    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.” ^[7]

21. [21]
    I agree with his Honour’s analysis and the principle set out which I have followed in a number of matters (see Speechley v Baynes [2004] QDC 408; Forsyth v McGrady [2005] QDC 130) whether the claim for compensation is one under the Criminal Code or the Act.

22. [22]
    I am therefore satisfied that the injury to the applicant on 17 April 2000 “materially contributed” to his diagnosed psychological injury as described in the report of Mr Hatzipetrou and his compensation should be assessed on this basis.

23. [23]
    Mr Hatzipetrou concludes by saying:

“The stressor was the assault and he had reported a cluster of symptoms initially consistent with Acute Stress Disorder which was likely to be complicated by his detention and fear of further attacks. Similarly, he was aware of the stigmatization associated with inmates transferred to protection section. Subsequently, he remained in the mainstream section of the prison despite fear of attack, psychological decline, physical injuries and episodes of marked physiological arousal. The intensity of these symptoms was likely to have dissipated over a period of several months. The current observation of his clinical presentation and test results indicated presence of intermittent posttrauma symptoms related to the incident and appeared to be mild in severity yet clinically significant. Similarly, it appears the intrusive and avoidant trauma features present are likely to reflect the trauma effects one would experience typically after such an event. The current clinical findings did not reveal psychopathological disorder such as Posttraumatic Stress Disorder, despite the cluster of clinically significant scores on the TSI. However, it is likely Mr Hartley will continue to experience some psychological sequelae of trauma in the future although these are likely to be less frequent and expected responses.”^[8]

Applicant’s Contribution

24. [24]
    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).

25. [25]
    I have referred to the circumstances of the incident in paragraph [3] 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

26. [26]
    The applicant’s injuries fall under the following categories of injury in Schedule 1 of the Act, namely:

1. (a)
   Item 24 – Stab wounds (minor) (percentage of scheme maximum 6% - 10%);

2. (b)
   Item 29 – Loss of vision (one eye) (percentage of scheme maximum up to 70%); and

3. (c)
   Item 31 – Mental or nervous shock (moderate) (percentage of scheme maximum 10% - 20%).

27. [27]
    Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on 17 April 2000 as follows:

28. [28]
    I therefore order that the respondent pay to the applicant the sum of $57,000.00 by way of compensation for the injuries he sustained.

29. [29]
    In accordance with section 31 of the Act, I make no order as to costs.