Devaraj v Mathutanayagam[2007] QDC 117

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   The applicant, Denash Angelo Devaraj by his litigation guardian Aruna Devaraj, 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, Surendaran Mathutanayagam, who was convicted by the District Court at Brisbane on 15 June 2004 of a number of offences including the offence of assault occasioning bodily harm of the applicant “… between 30 September 1999 and 20 January 2000 at Toowoomba in the State of Queensland.”^[1]

2. [2]
   In accordance with the order for substituted service made by this court^[2] on 30 March 2007, the applicant’s solicitors caused an advertisement to appear in the Public Notices section of The Australian newspaper on 19 April 2007 to effect service on the respondent of the material before the court.  Despite that publication there was no appearance by or on behalf of 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 31 January 2007 and filed in this court on 1 February;

2. (b)
   the affidavit with exhibit of Dr Barbara McGuire, Psychiatrist, sworn 22 January 2007 and filed in this court on 29 January 2007;

3. (c)
   the affidavit with exhibit of Dr Greg Apel, Psychiatrist, sworn 23 January 2007 and filed in this court on 29 January 2007; and

4. (d)
   the affidavit of substituted service with exhibit of Christopher Michael O'Connor, Articled Clerk, sworn 21 May 2007 and filed by leave in this court on 21 May 2007.

Facts:

4. [4]
   The respondent assaulted the applicant in circumstances set out in the material before the court by pulling and dragging the applicant over uneven and rocky ground causing him to sustain injuries to his legs and otherwise traumatising him.

Physical injuries:

5. [5]
   The applicant claims compensation for both physical and psychological injuries suffered by him arising out of the respondent’s assaults upon him. The applicant’s physical injuries consist of “bruising/laceration” for which he seeks an assessment of 3% under Item 1 of the Compensation Table contained in Schedule 1 of the Act.

Mental or nervous shock:

6. [6]
   The applicant also claims compensation for a psychological injury for which he was assessed by psychiatrists Drs McGuire and Apel respectively.^[3]

7. [7]
   The applicant was interviewed by Dr McGuire “on 27 February 2006” (six years post incident) and Dr McGuire’s concluded^[4]:-

“At this stage Denash does not fulfil the criteria for diagnosis of posttraumatic stress disorder.  However, due to his developmental level it is possible that the abusive reaction with Mr Surendaran may have an effect upon his capacity to form interpersonal relationships.  There is considerable evidence that exposure to a physically abusive relationship in childhood can predispose male children to expressions of violence within their own adult relationships.

At this stage he demonstrates security fears and it is reasonable to suppose that the anxiety induced by the offence aggravated his asthmas which had a significant effect upon his school performance.  It is of significance that he was admitted to hospital after he Committal Hearing as a result of a very bad asthma attack.”

8. [8]
   The applicant was interviewed by Dr Apel on 28 April 2006 who reports that the applicant “… describes a persistent state of emotional upset and crying over most of the year 2005.  He had nightmares recurrently and his sleep was very disturbed.  He would sit at home in quite a tearful state about everything that was going on.  During this time his anxiety was such that he could not think clearly and was not going well at school as he could not concentrate … he related this depressed period lasted about six months … he related he did not seek help for this and now feels he is fully recovered.”^[5]

9. [9]
   Dr Apel’s diagnosis is that the applicant has “no current psychiatric diagnosis, but Dr Apel further states, “He has suffered a significant depressive episode in the year 2005 which has spontaneously remitted.  He has spent a large part of his childhood in a state of significant anxiety.  It is quite likely that he would recall more traumatic incidents regarding Surendaran given a small amount of time with a psychiatrist/psychologist.”

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.

Applicant’s contribution:

11. [11]
    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).

12. [12]
    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 her.

Applicant’s submissions:

The applicant submits that he is entitled to compensation for his physical and psychological injuries in the following terms:^[6]

Findings on categories of injuries:

13. [13]
    On the basis of all of the evidence before me I find that the applicant’s injuries fall under the following categories of injury as contained in the Compensation Table of Schedule 1 of the Act, namely:

1. (a)
   Item 1 – bruising/laceration etc (minor/moderate) I assess at 2% in respect of Count 1 of the indictment.

2. (b)
   Item 31 – mental or nervous shock (minor) I assess at 5% in respect of this applicant.

14. [14]
    I therefore assess the quantum of the applicant’s compensation for bodily injury he sustained as a result of the conduct of the respondent as follows:

15. [15]
    I therefore order that the respondent pay to the applicant the sum of $5,250.00 by way of compensation for the injuries he sustained.

16. [16]
    In accordance with s 31 of the Act I make no order as to costs.