DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Peter James Oxenford, 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, Darryl Paul Coolwell, who was convicted by the District Court at Beenleigh on 17 February 2005 for a miscellany of offences including the offence of armed robbery with personal violence to the applicant on 2 April 2004.  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 25 July 2005 and filed at Beenleigh on 22 August 2005;

2. (b)
   three affidavits with exhibits of Lena Gatti, paralegal sworn 5 August 2005 and filed at Beenleigh on 22 August 2005; sworn 16 November 2005 and filed 17 November 2005 and sworn 17 November 2005 and filed 18 November 2005 respectively; and

3. (c)
   the affidavits with exhibits of Ian Lynagh, consultant psychologist, sworn 4 July 2005 and filed at Beenleigh on 22 August 2005..

Facts

3. [3]
   The applicant is a police officer aged 39 years. At the time of the incident he was off duty and was resting at his home. He was awakened by his wife who informed him that she had seen a person of Aboriginal appearance entering his mother’s home which was several blocks away. He ran up to his mother’s house and entered. He then encountered the respondent who was armed with a car key which the respondent used as a weapon against the applicant. A struggle ensued between the applicant and the respondent during which the applicant was aided by his wife and mother. The applicant wrestled and struggled with the respondent and during the struggle the applicant was punched by respondent; stabbed above the left eye with the key and gouged in his left eye. The respondent was subsequently restrained by the applicant before police arrived.

Injuries

4. [4]
   The applicant describes his injuries in paragraphs 11 to 20 of his affidavit. The injuries detailed by the applicant consist of the bodily injuries received during the struggle with the respondent and include injuries which come under the general category of “mental or nervous shock”.

5. [5]
   The applicant describes his injuries as follows:

1. (a)
   Laceration to forehead requiring sutures;

2. (b)
   Laceration to lower lip requiring sutures;

3. (c)
   Abrasion to left cornea;

4. (d)
   Abrasions to chest area;

5. (e)
   Bruising and bleeding to the nose;

6. (f)
   Swelling and bruising to the left eye socket and surrounding area (haematoma);

7. (g)
   Swelling and bruising to right ear and scalp;

8. (h)
   Swelling and bruising to jaw area;

1. (i)
   Pain and discomfort to right tooth;

10. (j)
    Left cracked rib;

11. (k)
    Laceration to lower left chest area;

12. (l)
    Bruising and swelling to right elbow;

13. (m)
    Bruising and swelling to left ankle;

14. (n)
    Various muscle tissue injuries; and

15. (o)
    Injury to right hand.^[2]

6. [6]
   Following the incident the applicant attended the Mater Private Hospital where his injuries were treated. The applicant was prescribed painkillers for up to 5 days after the assault to assist in recovery as he states that he was “in considerable pain from the laceration, bruising and cracked rib”.^[3]

7. [7]
   The applicant details his recovery from the assault and the residual effects of the assault in his Victim Impact Statement as follows:

“I have a permanent scar diagonally across my left eyebrow that I see every time I look in the mirror, reminding me several times daily of my assault. My left lower eyelid hangs lower than my right eyelid as a result of the injury I sustained, exposing my tear duct.  I have suffered several infections in this left eye since the incident. The rib that was cracked during the fight took 6 to 7 weeks before I could breathe without pain.  The area is still to this day tender to touch and I am unable to lie on my left side for any length of time. The rest of my injuries eventually healed, and I still suffer stiffness in my back from time to time as a result of the jarring I received during the fight with COOLWELL.”^[4]

8. [8]
   The respondent subsequently proved positive to Hepatitis C after being required to undergo a disease test order. The applicant then attended his general practitioner to have his blood tested as both he and the respondent had lost blood during the encounter and the applicant was fearful of having been infected. The applicant was subsequently informed after a lengthy period of testing that his blood tests were clear of infection.^[5]

9. [9]
   The applicant claims compensation for psychological injury to himself arising out of this altercation with the respondent.

10. [10]
    The applicant states in his affidavit that following this incident he began to suffer “intrusive recollections and nightmares”. He states further that:

• “…I began to suffer from panic attacks, bouts of anxiety and distress and was fearful of the respondent and/or his relations retaliating”;
• “I was in constant fear that I was infected”;
• “…I became moody and depressed and found that I was struggling with my psychological condition”; and
• “I believe the assault has had a profound and irreversible effect on me, which will undoubtedly have a significant impact upon my future, my employment and my personal relationships. These effects may hinder my chances of promotion within the Queensland Police Service.”^[6]

11. [11]
    The applicant was assessed by Mr Ian Lynagh, consultant psychologist, who compiled a report dated 3 May 2005 of his clinical findings arising from the interview with the applicant on 4 and 11 April 2005 (some 3 years post-assault).^[7]

12. [12]
    From the outset, Mr Lynagh states that he assessed the applicant “in relation to two Criminal Compensation Claims following being assaulted in 2002 and 2004”.

13. [13]
    It seems the second assault occurring on 6 August 2004 when the applicant was on duty in Cairns. He was attempting to apprehend an assailant when an altercation occurred between the applicant and his police partner and the assailant, his brother and girlfriend. The three offenders were subsequently arrested when other police arrived and the applicant was treated for injuries including an open wound to his left side forehead, bruising to the jaw and neck and headaches.

14. [14]
    Mr Lynagh opines that in the instant assault the applicant sustained the following psychological injury:

“An Adjustment Disorder with Mixed Emotion (Anxiety – moderate to high; Depression – mild to moderate) for a period of up to 9 to 12 months post-assault, together with some minor features of traumatization lasting up to a month post-assault – the traumatization insufficient to attract a formal diagnosis.

Under Schedule 1 of the Compensation Table for Criminal Offence Victims, in the assault of 2 April 2002, I assess Mr Oxenford having suffered:

• Mental or Nervous Shock – High Moderate (15% - 20%) for a period of 6 months.  Low Moderate (8% - 12%) for a period of 3 months.”^[8]

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.” ^[9]

21. [21]
    I agree with his Honour’s analysis and the principle set out which I 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]
    It is noted that the applicant suffered a further assault in the course of his duties 2 years and 4 months after the instant assault for which he was also assessed by Mr Lynagh but on the evidence it has been possible to separate the effects of each assault on him in respect of this category of injury. Mr Lynagh assessed the applicant’s injury for the instant assault in the following terms:

“Under Schedule 1 of the Compensation Table for Criminal Offence Victims, in the assault of 2 April 2002, I assess Mr Oxenford having suffered:

Mental or Nervous Shock – High Moderate (15% - 20%) for a period of 6 months.  Low Moderate (8% - 12%) for a period of 3 months.”^[10]

23. [23]
    I am therefore satisfied that the injury to the applicant on 2 April 2002 “materially contributed” to his diagnosed psychological injury as described in the report of Mr Ian Lynagh and his compensation should be assessed on this basis.

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 2 – Bruising/laceration (severe) (percentage of scheme maximum 3% - 5%);

2. (b)
   Item 21 – Neck/Back/Chest injury (minor) (percentage of scheme maximum 2% - 7%);

3. (c)
   Item 27 – Facial disfigurement or bodily scarring (minor/moderate) (percentage of scheme maximum 2% - 10%); and

4. (d)
   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 2 April 2002 as follows:

28. [28]
    I therefore order that the respondent pay to the applicant the sum of $21,000.00 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.