St George v Albert[2007] QDC 231

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Ronald William St George (a serving police officer) seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 30 May 2004 at Beenleigh, resulting in the respondent Karen Louise Albert pleading guilty before Judge Tutt in the Beenleigh District Court on 21 November 2006 to one count of assault of a police officer acting in the execution of his duty (serious assault). The respondent was sentenced to six months imprisonment with an immediate parole release date.

Facts

2. [2]
   On the morning of 30 May 2004, police were called to a house at 6 Sinclair Place, Beenleigh. Police had been contacted by the respondent’s parents who were elderly. The respondent was at that time residing in a tent in the open garage to the side of her parent’s house. Police approached the tent when they arrived and heard the respondent shouting, “Fuck off, cunts” and other profanities. The applicant identified to the respondent that police were there and asked the respondent to settle down. The respondent said, “Get fucked - you’re not wanted here”. Police officers repeated that they wanted the respondent to settle down.

3. [3]
   The applicant came out of the tent, walked past the police towards her parents and shouted, “You cunts have caused this”. The respondent then turned to the police and told them not to come there and that she did not “give a fuck” what they would do to her. The applicant then warned the respondent that she was to stop and settle down or she would be arrested. When the respondent continued with profanities, the applicant informed her that she was arrested. The applicant then reached out and grabbed the respondent from behind by both of her upper arms. The respondent began to struggle, throwing her body from side to side and attempting to pull her arms from the applicant’s grip. She repeated profanities and a Constable Kulczyk grabbed her other arm while the applicant also held the respondent by an arm.

4. [4]
   The respondent then put her head down and bit into the applicant’s forearm. The respondent punctured the applicant’s forearm with her teeth and drew blood from the injury. The applicant said, “The bitch just bit me”, and police continued to attempt to restrain the respondent. The respondent continued to struggle and yell out profanities towards police. The respondent was repeatedly told to stop and the applicant had to grab the respondent by the throat in an attempt to restrain her. The respondent was subdued, handcuffed and placed in the back of a police car and taken to the Beenleigh watch-house. By the time the police car reached the Beenleigh watch-house, the respondent had calmed down and apologised to the applicant for biting him^[1].

Injuries

5. [5]
   The applicant was examined by Dr Kevin Seeney on 21 June 2004. Dr Seeney noted that on examining the applicant’s left forearm he saw “a single puncture wound and a graze abrasion beneath this wound. Tenderness was also elicited over the left lower trapezius muscle along the medial border of the scapula and over the subscapularis muscle along the posterior left axillary border”. Dr Seeney described the puncture wound as “being consistent with that being caused by a tooth as a result of a human bite”. Dr Seeney prescribed blood tests, a physiotherapy program and medication for the injuries^[2]. Blood tests were performed on 22 June 2004, 24 September 2004 and 3 May 2006 and proved negative to Hepatitis C and HIV^[3].

The Law

6. [6]
   This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced operation on 18 December 1995 and provides for compensation in respect of injuries suffered by an applicant because of that offence. R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury with comparison to the “most serious” case in respect of each individual item in Schedule 1. Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.

Compensation

7. [7]
   Mr Frigo, counsel for the applicant, seeks compensation as follows:-

(1)Item 2 – bruising/laceration (severe) – 3%-5%

8. [8]
   In assessing injury within any particular scale, it is important to scale within the relevant range set out in the item table^[4]. In that respect, it is necessary to note that the injury here was a single puncture wound with an abrasion. In those circumstances, I consider that the award should either be made at the top of Item 1 (bruising/laceration (minor/moderate)) or at the bottom of Item 2 (bruising/laceration (severe)), that is an award of 3%. Accordingly I award 3% ($2,250) pursuant to Item 1.

(2)Item 13 – fracture/loss of use of shoulder – 8%-23%

9. [9]
   The submission is based on a report from the applicant’s physiotherapist, which notes that on initial examination –

“[the applicant’s] left scapula sat in a forward and downwardly rotated position. This was due to muscle spasm and inhibition relating to pain. The neck movement signs were limited and reproduced his symptoms when the lower neck/upper back joints were compromised. Repositioning [the applicant’s] scapula to a neutral position alleviated his left arm symptoms. On palpation of his lower cervical and upper thoracic spine, his symptoms were able to reliably be reproduced. Initially the radial nerve was too limited and irritable to treat. Treatment initially involved joint mobilisation and re-educating his scapula muscles. Taping his scapula in a neutral position was effective in offloading his irritated nerve root and improving the diminished proprioception. As [the applicant’s] symptoms improved, [the physiotherapist notes that he was] able to add in more rigorous joint mobilisations and started mobilising the affected neural tissue through [the applicant’s] arm. The applicant made a steady improvement over the next couple of months, although his symptoms were easily aggravated and he had to use great caution using his arm. [The applicant] was treated on 11 occasions [from 28 June 2004] until 17 August 2004”.^[5]

10. [10]
    It is clear on the basis of this report that there has been some significant diminution in the use of the applicant’s shoulder over some period of time requiring approximately two months of physiotherapy. In the circumstances, I consider that an appropriate assessment for this item is 10% of the scheme maximum. Accordingly I award 10% ($7,500) pursuant to Item 13.

(3) Item 32 – mental or nervous shock (moderate) – 10%-20%

11. [11]
    The applicant was examined by Dr Alan Freed on 20 April 2007 and Dr Freed produced a report dated 29 April 2007^[6]. Dr Freed noted that the applicant initially received negative results from private testing, showing that he had not been infected with Hepatitis C or HIV, but was required to be re-tested after six months to confirm that the diseases had not been contracted. Dr Freed noted that the applicant “worried for the duration of about six months before the second testing” and had suffered a strained relationship with his partner due to the effect on the applicant’s sexual relationship with that partner. Dr Freed concluded that “during the six months waiting to confirm that [the applicant] did not suffer from HIV or Hep C, [the applicant] suffered from an adjustment disorder with anxious and depressed mood and a change in behaviour” and further that “the adjustment disorder led to behaviours that later contributed to ending [the applicant’s] long term relationship”. Dr Freed considered that at the time of examination, the applicant no longer suffered from an adjustment disorder, although he still suffered from fatigue and moderate anxiety and mild depression. Dr Freed noted further that the applicant “has insight and quite appropriately does not regard himself as having been very ill during the time of his adjustment disorder”. The applicant’s Global Assessment of Functioning (GAF) scale was ranked by Dr Freed, subsequent to the incident, as “61-70”. DrFreed considered that the applicant would benefit from counselling by a clinical psychologist^[7].

12. [12]
    Although Mr Frigo submits that the assessment for mental or nervous shock should be at the top end of the moderate range (i.e. 20%), the report of Dr Freed, in my view, supports an assessment towards the lower end of the moderate range. Accordingly I award 12% ($9,000) under Item 32.

Contribution

13. [13]
    The applicant was subjected to an attack by the respondent when he was doing no more than carrying out, with singular restraint, his duties as a serving police officer in adverse circumstances. I do not consider that the applicant has in any way contributed to his own injuries^[8].

Conclusion

14. [14]
    Accordingly I order that the respondent Karen Louise Albert pay the applicant Ronald William St George the sum of $18,750.