DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence Victims Act 1995. On 19 February 2001 the respondent pleaded guilty to offences including that between 1 October and 29 October 1999 he unlawfully assaulted the second applicant and did him bodily harm whilst armed with an offensive instrument, namely a lighter, and that on 16 March 2000 he tortured the first applicant, and unlawfully did the first applicant grievous bodily harm. He was sentenced to a term of imprisonment.

2. [2]
   The circumstances of the offending were that the first applicant met the respondent in about September 1999, and they subsequently became friends; they used to drink together, and on 16 March 2000 he was at the respondent’s house.^[1]He had been drinking there and had fallen asleep. When he woke he found his hands and feet bound, and felt pain in his leg. He attempted to crawl out of the door and he was then sprayed with lighter fluid and the respondent set fire to him, as a result of which he sustained extensive burns to both his legs. He was able to roll and extinguish the flames, but the respondent repeatedly set fire to him while he was on the ground; eventually he blacked out. The next thing he remembers is waking up in hospital in extreme pain, particularly in his legs.

3. [3]
   The circumstances of the offending involving the second applicant were that he had also known the respondent for about two years.^[2]He had been drinking with the respondent and returned to his unit where he fell asleep in a chair, he subsequently found that there was a hole in his pants and a burn area about three or four inches in diameter on his right shin. While he was asleep, the respondent had burnt him on the leg with his cigarette lighter, although another person had put the fire out.

Injuries to the first applicant

4. [4]
   The first applicant suffered extensive burns particularly to his legs; he also suffered other injuries; a bruise and rope burn to his neck, cigarette burns on both arms, burns on both eyelids, a bruise and an abrasion on his forehead, scratches on his chest and abdomen, and bruising and lacerations on various parts of his body.^[3]  The sentencing judge, who has since retired, noted in his sentencing remarks that the first applicant had suffered “very serious injuries indeed” (p 6).

5. [5]
   The first applicant required extensive treatment for his legs, including extensive skin grafting, but his legs were able to be saved; at one stage there was concern that the right leg might have to be amputated. He was eventually in hospital for about six weeks. There would have been very severe pain, particularly in the early stages, and he continues to suffer pain and discomfort, particularly in the right leg as a result of the injuries. The pain in the right leg is constant and aggravated by any significant form of physical activity, or if he sits in the one position for too long. Sometimes the leg goes into spasm, and on other occasions it has given way. He has constant tingling or pain in the left leg, although not as severe, and the left knee can also give way. He is very embarrassed about the appearance of the legs and he avoids wearing shorts or anything which exposes them, and avoids going out in the sun. He has no confidence with women and with one brief exception has been unable to enter into any relationship with a woman since the incident.

6. [6]
   Prior to this incident he was employed in a variety of jobs, most recently as a childcare teacher, but he has subsequently had virtually no employment, and regards himself as unemployable. This is partly because of his physical disabilities and partly because of his psychological problems; he now becomes very easily upset and even angry with people, and has developed violent tendencies, which would make it impossible for him to work with other people, particularly children. He has also become paranoid about his personal security; he does not feel safe anywhere, avoids crowds and using public transport. He suffers from nightmares almost every night, and has been admitted to a psychiatric hospital on three occasions. He has attempted suicide and has frequent suicidal thoughts.

7. [7]
   The first applicant has been seen by a number of different medical experts at different times. He was seen by an orthopaedic surgeon, Dr White, on 10 March 2003 for the purposes of a report.^[4]  Dr White recorded complaints of pain in the right leg all the time and intermittent pain in the right knee, with pain in the left leg which was not as bad, but still a problem. On examination there was extensive scarring to both legs which was well healed. The knee function was preserved. He said the injury had produced extensive soft tissue disruption, with significant muscle disruption in both thighs, and he did not suggest that there could be improvement with surgery. He assessed the first applicant as suffering a 20% impairment of both legs in terms of function.

8. [8]
   He was seen on 31 March 2003 by Dr Lanigan, a plastic and reconstructive surgeon, for the purposes of a report.^[5]Dr Lanigan described the first applicant as suffering almost circumferential burn scars to both thighs, with split skin donor sites on both thighs. The wounds were stable but had the appearance of skin grafting. There was an area of muscle herniation 10 cm by 7 cm on the right thigh. He did not recommend any further surgery, although he said there was significant aesthetic deformity, and referred to what he described as some minor cramps and stretching pains due to a degree of inelasticity of the grafts which should improve with time.

9. [9]
   The first applicant was seen by a psychiatrist, Dr Young, on 31 March and 7 May 2003, on referral from a general practitioner, and Dr Young provided a report in July 2003.^[6]The report recorded that the first applicant had other problems prior to the assault, including abuse of intoxicants. Dr Young diagnosed a number of conditions, including post‑traumatic stress disorder, agoraphobia, panic attacks and social phobias, which he treated with medication and by referral for neuropsychological assessment and to a program for substance abuse. He commented that he had not at that stage performed a medico‑legal assessment and that it would be a fairly complex issue to tease out the effects of the assault from pre‑existing problems.

10. [10]
    The first applicant was seen by a psychologist, Ms Bryant, between 11 November 2003 and 7 June 2004, apparently for the purposes of a report to the solicitors.^[7]She recorded complaints of a number of emotional difficulties, severe loss of self‑esteem, loss of trust in others, hypervigilance, feeling angry and depressed, and a sensation of various anxiety symptoms, a fear of crowds and a difficulty in various social situations. She referred to one real attempt at suicide about six months earlier when he tried to hang himself but stopped because it hurt too much. He complained of short‑term memory problems. He was at the time taking medication in the form of Efexor and Xanax. The psychologist concluded that he had been leading a somewhat chaotic, self‑destructive and overall dysfunctional life filled with chronic fear and social isolation since the assault in March 2002, which among other things had prevented him from obtaining employment. He had many symptoms found in individuals with post‑traumatic stress disorder, and also presented with the clinical features of substance abuse and adjustment disorder with depressed mood and anxiety. She also assessed him as a suicide risk in the short and long term.

11. [11]
    The first applicant was seen by a psychiatrist, Dr Persley, on 15 November 2006 for the purposes of a report.^[8]  This also recorded symptoms of insecurity since the assault, nightmares, anxiety and hypervigilance, and feelings of being irritable, restless and agitated, with a loss of self‑confidence. There were suicide attempts during 2004, and he was admitted to a mental health unit on three occasions that year. He was subsequently put on Efexor and Xanax by Dr Young. He reportedly had given up drinking alcohol but he was still using cannabis. He received a disability support pension. Dr Persley referred to his past psychiatric history as nil prior to the assault, which is not consistent with the other material; in these circumstances, not surprisingly he did not deal with the issue raised by Dr Young, of distinguishing between the pre‑existing conditions and the consequences of the injury. It does not appear that he was provided with a copy of Dr Young’s report.

12. [12]
    Dr Persley diagnosed post‑traumatic stress disorder, which he described as chronic, and alcohol and substance dependence, which he said was controlled. He noted learning difficulties and probable attention deficit disorder in childhood, which he described as minimal in comparison with the extent of the post‑traumatic stress disorder. He thought that the first applicant would benefit from continued psychiatric treatment and would require the use of anti‑depressants and tranquilisers for the rest of his life to control his symptoms, and thought it unlikely he would be able to obtain employment or enjoy a normal social life. He described the condition as a severe nervous disorder with a degree of impairment of 30%; this description, however, was by reference to the table for criminal compensation, and the percentages are not percentages for impairment, so this assessment is unreliable.

Assessment – First Applicant

13. [13]
    The first applicant was born on 21 December 1978 and was therefore 22 at the time of the offence; he is now almost 29. The approach to assessment is to assess the various injuries in accordance with the requirements of the Act to produce a percentage for each injury, which percentages are then added together to arrive at the amount of the compensation order subject to the scheme maximum; Zaicov v Jones [2002] 2 Qd R 303, 309‑10. It is necessary to be careful that there is no overlapping between the compensation awarded in respect of different injuries.^[9]

14. [14]
    The submissions for the first applicant identified eight separate areas of bruising and laceration which were said to fall into either Item 1 or Item 2 of the schedule. Some of the matters identified are burns rather than bruising or laceration; burns as such do not feature in the schedule, and in my opinion need to be dealt with separately. An exception to this is what is described as a rope burn to the neck, which I think is correctly identified as an abrasion, and covered by Items 1 or 2, or closely analogous to it. The bruising and abrasion to the forehead, the rope burn, the scratches on the chest and the scratches on the abdomen, and other bruising and laceration to various parts of the body properly come within Items 1 or 2.

15. [15]
    Ordinarily an assessment is made under Items 1 or 2 in respect of all bruising, laceration, etc which is suffered by a particular applicant. It has been said that it may not be necessary to be beaten black and blue from head to foot in order to obtain 5% under Item 2,^[10]but there would need to be quite extensive injuries of this nature, of some severity, to justify such an award overall, and I think it clear enough that the correct approach is to make an award under Item 1 or 2 for all bruising, laceration, etc which is suffered anywhere. On that basis I would allow 4% for the totality of the bruising and laceration.

16. [16]
    It was further submitted that there should be an award under Item 20 in respect of each leg on the basis that there has been significant functional impairment to each of the legs. A further claim was made under Item 28 in respect of bodily scarring, for the scarring and disfigurement of each of the legs. There are different situations where an award may be made for facial disfigurement or bodily scarring, and sometimes (but not necessarily always) it is appropriate to make a separate award in respect of this item, apart from any award which is made under another item in the schedule in respect of an injury which will necessarily produce a scar:  for example, Item 26 gunshot/stab wound (severe).

17. [17]
    It seems to me that Item 20 is appropriately applied separately in respect of each of the legs, because in terms of functional impairment each of the legs suffered a separate and specific injury. On the other hand, a reference to bodily scarring is in my opinion similar to Items 1 and 2, in that it is a reference to the overall state of the body, rather than something which is assessed separately by reference to different parts of the body, or for that matter by reference to individual scars. That follows partly from the terms used in Items 27 and 28, and partly from the maximum percentage in Item 28.

18. [18]
    In view of the severity of the scarring, and bearing in mind that it was caused by burns, in my opinion it is appropriate to make allowance under Item 28 for the scarring, which would take into account the fact that the scarring had been caused by burns, in addition to an allowance under Item 20 in respect of the partial loss of use of each leg. In order to avoid overlapping, essentially I will be compensating under Item 28 for injury to or damage to the skin and the visible consequences of that, while compensating under Item 20 in respect of injuries to muscle and interference with the function of the leg. This is not a neat skin‑muscle divide; it is relevant to take into account the muscle herniation in assessing bodily scarring under Item 28, and relevant to take into account interference in function of the legs because of the scarring under Item 20, so long as I am bearing in mind when making an assessment under Item 28 that it does not include any effect on the function of the leg.

19. [19]
    The assessment under Item 20 is accordingly based essentially on the report of Dr White, who assessed a 20% impairment of both lower limbs, although both the description of symptoms and the results on examination for the right leg were worse than for the left leg. Overall, there was a significant and permanent partial loss of use of each of the legs, in a relatively young man, though he is not as badly off as someone who has lost a leg completely, or suffered total loss of use of the leg.^[11]In all the circumstances I will allow 10% for loss of use of the left leg and 12% for loss of use of the right leg.

20. [20]
    With regard to the bodily scarring, the scarring is quite extensive and unsightly, there appears to be no prospect of improvement, and the injury which produced it, the burns, would have been extremely painful both at the time and during treatment. The scarring is embarrassing and he keeps it covered, although there is I suppose the consolation that it is on parts of his body where it can be covered up relatively easily; the need to wear long trousers to do this might interfere with some recreational activities. I think it is a bad case of bodily scarring but because it does not involve facial disfigurement or other disfigurement which cannot be conveniently covered, it does not justify an award at the top of the range. On the whole I will allow 22% under Item 28 in respect of the bodily scarring. That takes into account all of the scarring and burns, although obviously the most significant scarring was that on the legs.

21. [21]
    The final claim was in respect of mental or nervous shock. I accept from the medical reports that the first applicant has suffered post traumatic stress disorder as a result of the offences which is chronic and severe. I also accept that most of the plaintiff’s current problems are caused by the accident, though it does appear that there may well have been some pre‑existing problems, in the light of the report from Dr Young, and on the whole I am not persuaded that the substance abuse was caused by the injuries rather than being a pre‑existing problem; no doubt the way in which it was manifested changed as a result of the injuries.

22. [22]
    The plaintiff’s psychiatric condition has required treatment including hospitalisation and medication, there has been a serious suicide attempt, and it is thought unlikely that he would be able to obtain employment or enjoy a normal social life in the future. In the circumstances, I think that the mental or nervous shock caused by the injury is severe and falls within Item 33. In view of the extent of the disruption this produces in all aspects of the plaintiff’s life I think it falls into the upper part of Item 33, and I will allow 30% under that item for mental or nervous shock.

23. [23]
    There is nothing to indicate that the first applicant contributed in any way to the injuries suffered by him, or that the amount assessed in respect of any of the injuries should be otherwise reduced for any reason. Adding up the percentages produces a total of 78% which when applied to the scheme maximum is an award of $58,500.

The second applicant

24. [24]
    The second applicant suffered a burn area on the right shin about three or four inches in diameter. He said that because of other previous injuries to his leg he had little feeling in the area that was burnt and did not seek treatment for some time, when the wound had started to become infected.^[12]The wound then took another four weeks before it healed completely. He believes it left a permanent scar but is not sure because of other scars on his leg anyway. He said that the worst effect of the incident from his point of view was the psychological effect; he was already suffering from depression and the incident made him worse. He also said that he became very nervous and reluctant to form any relationships with women, because he associated the injury with the possibility of jealousy on the part of the respondent, and for a time had difficulty getting a job although he has subsequently been able to obtain work and said his life had improved to some extent.

25. [25]
    The second applicant was seen by Dr Persley on 29 January 2007 for the purposes of a report.^[13]Dr Persley noted that the applicant had been in receipt of a disability support pension since 1995, that he had had long standing difficulties in relating to females which had been a source of worry to him and that he no longer felt as depressed as he had in the past, and no longer experienced suicidal thoughts. He had in the past sought counselling and attended various groups. He was not currently taking medication. The second applicant described himself to the psychiatrist as a recluse who had led an itinerant lifestyle for many years, having dropped out about 20 years ago. He was not overtly distressed or depressed, though his thought processes were somewhat vague and rambling. He had attended the Prince Charles Hospital in November 1999 requesting assistance but did not regularly follow up this request. Dr Persley was of the opinion that the second applicant had a long standing personality dysfunction involving chronic substance abuse. The features suggested that he may be hebephrenic.^[14]Dr Persley thought he had suffered minimal emotional problems relating to the incident and that it had not left any permanent consequences.

26. [26]
    The second applicant felt that this understated the adverse effect of the incident on him. He said he was definitely not the same person as he was before the incident and suffered from a different kind of depression since then. He would have obtained a report from another psychiatrist but he could not afford it.

27. [27]
    It seems to me that the major difficulty suffered by the applicant is that the psychological impact on him appears to have been related not so much to the physical injury he suffered, but to what he heard had happened to other people. He said the next day he met someone else who had been with him at the respondent’s place who had had some of his hair shaved by the respondent while he was asleep, which he said increased the psychological effect of what had happened to him.^[15]Several months later when he found out what had happened to the first applicant he became very upset about this, apparently because on that occasion he had also been invited to the respondent’s place but had not gone, and therefore blamed himself for the injuries that had been caused to the first applicant.^[16] This is also referred to in the psychiatrist’s report where it was described as the second applicant not realising the significance of the incident until one year later when he heard that the respondent had set another man on fire and attempted to kill him and that he then realised the respondent was crazy and the outcome could have been more severe.

28. [28]
    The difficulty therefore is that it seems to me that the psychological effect of these events on the second applicant arose essentially as a result of being told what had happened to the first applicant rather than as a result of what actually happened to himself. Although the respondent has been convicted of offences in relation to what happened to the first applicant, and these were personal offences, it is only the person against whom a personal offence is committed who can apply for compensation because of an injury suffered by that person because of that offence: s 24(2). Even if the second applicant suffered psychological injury as a result of the offences having been committed on the first applicant, that gives no entitlement to compensation under the statute. The second applicant can claim compensation only in respect of injuries suffered as a result of the offence committed against him, that is to say the offence of injuring him on the leg.

29. [29]
    It appears both from the second applicant’s affidavit and from the report of the psychiatrist that, to the extent that the second applicant’s psychological condition has been made worse as a result of these incidents generally, that was to a significant extent at least, if not principally, because of what had happened to the first applicant rather than because of what actually happened just to himself. It may be of course that if nothing had been done to him, news of what had been done to the first applicant would not have had the same sort of adverse effect on him, and for this reason I expect that the injury he suffered played some part in such psychological problems as he has now, or any aggravation of pre‑existing problems associated with the behaviour of the respondent.

30. [30]
    To the extent that any aggravation or any new psychological problems were attributable to matters other than the personal offence committed against the applicant for which the respondent has been convicted, they are not compensable under the Act, and therefore any assessment in respect of any injury caused partly in that way ought to be reduced pursuant to s 25(7), even though this did not involve any behaviour on the part of the second applicant that directly or indirectly contributed to the injury.^[17]I accept that there is nothing in the material to suggest that any behaviour of the second applicant directly or indirectly contributed to his injuries, either his physical injury or his psychological injury.

31. [31]
    With regard to his physical injury, that was a burn which has healed, although it did become infected and required some treatment over a period of a few weeks. It was less painful than one would have expected for a burn of that size. Burns as such are not identified as an injury in schedule 1, and in view of the absence of identifiable scarring as a consequence of the injury, I do not think it is appropriate in this case to make an award under Items 27 or 28. On the whole, I think the correct approach is to make an award under s 25(6) on the basis that the injury is closest to bruising or laceration under Items 1 to 2. Bearing in mind the pre‑existing state of the second applicant’s leg, and that the burn was, unusually, not particularly painful, I think an appropriate allowance under s 25(6) is 2%.

32. [32]
    With regard to psychological injury, I think there has been an aggravation of the second applicant’s pre‑existing psychological problems, although in the light of the psychiatrist’s report I do not think that can be regarded as a substantial or long lasting aggravation; essentially the pre‑existing psychiatric condition has now taken into account this additional development, and fastened onto it, without I think producing a psychiatric illness which is significantly worse. There is also the consideration that to some extent at least the second applicant concedes that his condition has improved since the incident, and it looks as though he was in a fairly bad way before the incident anyway, so it may be that he is now better off than he was before the incident.

33. [33]
    Overall, I am not persuaded that in connection with the incident in the broadest sense the applicant has suffered more than minor mental or nervous shock, for which I would allow 6%. In all the circumstances I think an appropriate allowance, taking into account the extent to which matters which are not compensable contributed to the injury suffered by the applicant, is 3% in respect of mental or nervous shock. That produces a total of 5%, which when applied to the scheme maximum is an amount of $3,750.

34. [34]
    I therefore order that the respondent pay to the first applicant $58,500 compensation in respect of the injuries suffered by the first applicant as a result of the offences against the first applicant of which the respondent was convicted on 19 February 2001, and to pay to the second applicant $3,750 compensation in respect of the injuries suffered by the second applicant as a result of the offence against the second applicant of which the respondent was convicted on 19 February 2001. There is no jurisdiction to make an order for costs.