DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Olive Beatrice Lea, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged bodily injury she sustained arising out of the criminal conduct of the respondent, Tony Richard Dalton, who was convicted by the District Court at Kingaroy on 4 November 2002 for unlawfully assault occasioning bodily harm to the applicant on or about 13 April 2002.  The respondent although being served with the application made no appearance at the hearing.

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 12 August 2004 and filed at Kingaroy on 16 August 2004;

2. (b)
   the affidavit with exhibits of Michael Mason, solicitor sworn 13 August 2004 and filed at Kingaroy on 16 August 2004; and

3. (c)
   two affidavits with exhibits of Manuela Habicht sworn 28 July 2004 and filed at Kingaroy on 16 August 2004 and sworn 21 June 2005 and filed at Beenleigh on 7 July 2005 respectively.

Facts

3. [3]
   The applicant swears that she was the victim of an assault by the respondent who was her then de facto husband the circumstances of which are summarised in his Honour Judge Hall’s sentencing remarks being Exhibit “MM1” to the affidavit of Michael Mason. The applicant and the respondent appeared to have had an argument the night before the assault after which the applicant had been asked by the respondent to leave the home they shared together which she did. The incident occurred the next day when the applicant had returned to her then accommodation after drinking at a party where she and the respondent were guests. After going to sleep the applicant was awakened by the respondent who was intoxicated. He demanded that she return home with him then. The applicant walked out to the laundry when the respondent grabbed her by the throat and pushed her up against a wall. He continued to squeeze her throat and yell at her and the applicant states that at that stage she could not breathe and began to fear for her life. She managed to push him off and run out of the house. The respondent pursued the applicant and then grabbed her again by the throat and punched her to the face and mouth telling her that he was going to kill her. Once again the applicant managed to push the respondent off and escape. She then went immediately to the local hospital to seek treatment at which time the police were contacted.

Injuries

4. [4]
   The applicant describes her injuries in paragraphs 13, 16 and 17 of her affidavit and they primarily come under the general category of “mental or nervous shock” although she also complained of a relatively minor “…cut lip from the punch” and some residual tenderness on the skin of the neck and headaches.^[1]

5. [5]
   The applicant was examined by Dr Manuela Habicht on 28 and 29 March 2004 (almost 2 years post-incident) and a report of such examination dated 27 June 2004 is Exhibit “A” to the affidavit of Dr Habicht.

6. [6]
   Dr Habicht recites the applicant’s history including the fact that:

“…the client stated that she received about 5 counselling sessions by a Social Worker at Queensland Health.  Collateral information exists to support this.

File notes (Cherbourg hospital) dated 09 April 2002 by Dr Morby (psychiatrist) clearly indicated that the client had recovered from previous episodes of depression and anxiety prior to the assault.

File notes dated 22 October 2002 indicated that the client suffered sleep disturbances and poor appetite.  On review dated 21 November 2002 the client presented as “stressed out” to the Social Worker as well.”^[2]

7. [7]
   Dr Habicht also stated that the applicant reported:

1. (a)
   Intrusive thoughts about the events many times a week;

2. (b)
   Nightmares in which she sees an individual coming towards her;

3. (c)
   Has a visual image of the assault each night;

4. (d)
   Gets distressed when she sees others getting hurt;

5. (e)
   Has anxiety problems such as being sweaty and heart pounding;

6. (f)
   She avoids social activities and even shopping because of the fear that the respondent would be there;

7. (g)
   No longer interested in anything or anybody;

8. (h)
   Sleeping difficulties;

1. (i)
   Anger outbursts;

10. (j)
    Concentration difficulties;

11. (k)
    Startled at sudden noises.^[3]

8. [8]
   Dr Habicht further stated that the applicant reported:

“… that she engaged in binge drinking since the assault.  She reported that she now consumes 6 cans of Rum/Coke on Fridays and Saturdays as well as 1 can per day.  Ms Lea stated that she drinks in order to be able to fall asleep.  This equals 204g alcohol per week.  The National Health Guideline point out that alcohol consumption for females up to 140g alcohol/week with one alcohol free day is within the safe range.  Ms Lea’s alcohol consumption exceeds these limits…..”^[4];

And further:

“…although the respondent is quite distressed and acutely aware of her need for help, her low energy level, passivity, and withdrawal may make her difficult to engage in treatment.  Her self-esteem is quite low and she views herself as ineffectual and powerless to change the direction of her life.  The disruptions in her life have left her uncertain about her goals and priorities, and tense and pessimistic about what the future may hold.  She reports difficulties concentrating and making decisions, and the combination of hopelessness, agitation, confusion, and stress apparent in these scores may place the respondent at increased risk of self-harm”.^[5]

9. [9]
   Dr Habicht summarises her opinion in the following manner:

“In my professional opinion the 45-year old female presents with a history of assault causing grievous bodily harm that has been identified as the antecedent for the development of Posttraumatic Stress Disorder and Major Depressive Disorder, Single Episode, severe.  However, as a result of Ms Lea’s previous depressive episode from which she had recovered prior to the assault (see medical notes) it was more likely for her to develop as (sic) mental health again.  It is also likely that Ms Lea warranted at least a diagnosis of Alcohol Abuse prior to the assault, which developed into an Alcohol Dependence following the above-mentioned offences committed by Mr Dalton. 

A diagnosis of PTSD in DSM-IV (Diagnostic and Statistical Manual for Mental Disorders, 4^th Edition) does not allow for a descriptor of severity of PTSD.  However the tests performed indicated significant elevations (=96 on the PAI).  It is therefore evident that the client has suffered a severe mental/nervous shock that contributed to the development of a variety of anxiety related as well as depressive features, which appeared to be now stable.”^[6]

10. [10]
    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

11. [11]
    The topic 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.

12. [12]
    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”.

13. [13]
    This test appears to have been approved by the Court of Appeal in SAM v SAM [2001] QCA 12.

14. [14]
    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”.

15. [15]
    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]

16. [16]
    I agree with his Honour’s analysis and the principle set out which I followed in the matter of Speechley v Baynes [2004] QDC 408 (unreported judgment of 17 September 2004) whether the claim for compensation is one under the Criminal Code or the Act.

17. [17]
    The issue in this application is whether this “current” condition can be attributed to the assault the applicant received at the hands of the respondent the subject of the offence or whether its cause is for other reasons or a combination of both.

18. [18]
    This matter was heard on 1 June 2005 at Kingaroy and was adjourned so that further hospital records mentioned in Dr Habicht’s report and referred to in [6] above could be furnished to the court. Those records have been forthcoming and have been made Exhibits “A” to “L” to the second affidavit of Dr Habicht filed at Beenleigh on 7 July 2005. Counsel for the applicant conceded in written submissions received 18 October 2005 that “…although she may have pre-existing condition/disorder the notes do not reveal the nature of the condition/disorder.”^[8]  Counsel goes on to observe that “…..Dr Habicht is quite specific in diagnosing the specific disorders from the assault.  In the circumstances, the applicant’s award should not be discounted on speculation from the notes her conditions are the same as her condition post assault”.^[9]

19. [19]
    A perusal of the hospital records reveals that the applicant was not without problems prior to the assault. The records show:

• “13.2.02 1420 Admitted to ward at 1330hrs following transfer from Kingaroy District Hospital. Accompanied by mental health workers. Total abdominal hysterectomy at KDH 5-2-02…..
• 13.2.02 2:30pm Elaine Mostaert M. H. Social Worker … Said that she had felt suicidal on Sunday … initially claimed that she had no pain but later described feelings of wanting to stick a knife into herself. Olive entered a verbal no harm contract, agreeing not to harm herself (and to remain in hospital)….has had some suicidal ideas …not suicidal at present…
• 14.2.02 10:50 am Elaine Mostaert M. H. Social Worker … Spoke of current relationship problems. Counselled regarding same. Said she had felt suicidal last night but had been able to resist. When asked said she does not feel suicidal at present. No harm contract (verbal) continued. Able to promise not to harm herself…refused suggestion of anti-depressant medication…
• 15.2.02 11:20 E Mostaert Mental Health Social Worker Denies current suicidal ideation. Suicide risk assessment completed. Claimed ti be very angry regarding behaviour of partner ad to have done some damage to the property where she found him yesterday evening. Counselled against aggressive behaviour. Again able to promise not to harm herself. Explained that should staff consider her to be at risk of suicide, transfer….could occur in the interests of her own safety…
• 9/4/02 Dr Juliane Morby Consultant Psychiatrist …Seems to be coping reasonably well despite her mother’s recent death. Denies depressive Sx’s, anxiety or suicidal ideation. Gets “vicious” and aggressive when drunk. …Had stopped anti-depressant a few months ago. Feels she needs to talk to people -> grief counselling if necessary.”^[10]

20. [20]
    While there is evidence of a pre-existing condition in terms of the applicant’s psychiatric state aggravated by long-term alcohol abuse and depressive symptoms, it is difficult to discern how this has contributed to her current specific condition as diagnosed by Dr Habicht. On the evidence I find that the assault upon the applicant became the precipitating factor leading to the diagnosis described by Dr Habicht.

21. [21]
    I am therefore satisfied that the injury to the applicant on or about 13 April 2002 “materially contributed” to her diagnosed Posttraumatic Stress Disorder and Major Depressive Disorder, Single Episode severe, and her compensation should be assessed on this basis.

Applicant’s Contribution

22. [22]
    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).

23. [23]
    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 her.

Categories of Injuries

24. [24]
    On the whole of the evidence and after taking into account all relevant factors I find the applicant’s injuries fall under the following categories of injury in Schedule 1 of the Act, namely:

1. (a)
   Item 1 – Bruising / laceration etc (minor / moderate) (percentage of scheme maximum 1% - 3%); and

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

25. [25]
    I assess the quantum of the applicant’s compensation for the bodily injuries she sustained on or about 13 April 2002 as follows:

26. [26]
    I therefore order that the respondent pay to the applicant the sum of $12,750.00 by way of compensation for the injuries she sustained.

27. [27]
    In accordance with section 31 of the Act, I make no order as to costs.