Kerry v Minter[2008] QDC 3

[2008] QDC 003

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBERTSON

No D214 of 2007

MAROOCHYDORE

DATE 24/01/2008

JUDGMENT

CATCHWORDS:  Criminal Compensation s.24 of Criminal Offence Victims Act, application of SAY v AZ ex parte A/G (Qld) to case in which contributing causes to injury independent of the respondents' where "broad brush" approach taken, consideration of psychological opinion evidence

HIS HONOUR:  This is an application for compensation pursuant to section 24 of the Criminal Offence Victims Act 1995.  On the 21st of October 2003, the respondents entered a house of Mr Kerry and assaulted him.  The assaults were said to be related to an outstanding debt. 

Mr Allan Minter, who is the father of the first respondent, Allan Henry Minter, at some point assaulted Mr Kerry with a baseball bat and he was kicked in the ribs, and punched repeatedly.  There is now some dispute as to what injuries were caused during the period of the assault. 

There is no doubt that, subsequently, the respondents were convicted either by a jury or on their own plea of various offences which her Honour Judge Dick described, in her sentencing remarks on the 31st of August 2006, as being generally described as home invasions.

As I understand it, the third respondent, Dan Francis, who has not appeared today, pleaded guilty and the Minters went to trial and were convicted by a jury of some of the offences, and acquitted, at least on one other of an offence of robbery.  They were sentenced to terms of imprisonment by her Honour.

Unfortunately, I cannot resolve any dispute over what injuries were said to have been caused in the assault at the time of proceedings before her Honour, because the transcript of the sentencing proceedings is not before me, and her Honour makes no reference to the actual injuries.

I can be comfortably satisfied that he suffered injuries which are set out in a report of Dr John Richards, dated the 15th of April 2004.  This report is annexed to an affidavit of the applicant, and marked DK4.  Dr Richards was the actual treating doctor.  He saw Mr Kerry at the Nambour General Hospital Emergency Department at 20 minutes past midnight on the 22nd of October 2003.

He noted the following injuries:

"1.Minor periorbital swelling of the eye, no change to vision/eye movements. Eye movements normal. Minor nose bleed nil zygoma tenderness.

2. Minor haematoma left mastoid.  No orthorea, no ataxia or change in gait.  No A/LOC, no vomiting and no local neurology. 
3. Bruising/grazing to left lateral posterior ribs above level of the spleen.  Nil abdomen pain, abdomen soft and tender.  Unable to cough due to pleural chest pain, but RR18, O², sats, 100% RA, no collapsed lung or chest X-ray, clinically may have one to two fractured ribs. 
4. Pain to back/side of neck.  No obvious swelling/bruising, no stridor, no drooling swallowing saliva."

Dr Richards notes his impression as being "Fractured one to two ribs left posterior chest clinically requiring oral analgesia to assist with breathing pain."  There was no evidence to suggest that he actually suffered rib fractures.

There is another medical report of a Dr Terry Hanelt, dated the 29th of August 2007.  As I understand it, Dr Hanelt was asked to report, based on access to the medical records of the 22nd of October 2003 relating to Mr Kerry.  This is because Kerry alleges that in the assault he lost two teeth, and a claim is made under a separate heading for loss of two teeth.

Dr Hanelt notes, "The Queensland Service Notes states "one front tooth knocked out".  The triage nurse notes state, "Two teeth gone."  The medical notes make no mention of a dental injury.  From this one can only state that it is probably there was a dental injury involving the loss of one or two teeth."

Mr Courtney has also referred me to another comment in Dr Hanelt's report to this effect,

"Kerry presented on 30/10/2003 requesting a mental health assessment, stating he felt depressed and suicidal.  Kerry left prior to completion of a mental health assessment.  Other clinical notes indicated Kerry had a pre-existing mental health condition at the time he was assaulted.  There is insufficient documentation in his Nambour General Hospital clinical records in relation to his previous or subsequent mental health to determine the impact of the assault on Kerry's mental health."

Mr Kerry also claims that he suffered a mental or nervous shock injury in the incident and he relies on a report of Mr Barry Kerr, clinical psychologist, dated the 1st of June 2007.  Mr Kerr gave oral evidence before me today and was cross-examined by Mr Courtney on behalf of Allan Henry Minter. 

In cross-examination, Mr Kerr told Mr Courtney that he saw Kerry once in May of 2007 probably for between two and two and a-half hours.  He undertook no clinical psychological testing.  He accepted that he had no access to, or copies of any medical and/or psychological reports relating to Kerry's psychological history either prior to or subsequent to the assaults in October 2003, apart from the medical reports to which I have referred.

According to Mr Kerr, Kerry presented as a dishevelled, tearful man who was extremely emotional throughout.  Mr Kerr said he gave a very disjointed history.  Significantly, he did refer to a large number of obviously serious stressors in his life both prior to and subsequent to the assault which could well have contributed to his mental state as at the time he was seen by Mr Kerr on the 29th of May 2007.  These included his obviously quite significant drug addiction, significant medical problems relating to a motor vehicle accident in Sydney and significantly, he said to Mr Kerr that,

"He had been devastated since the separation from his wife since she and his children were said to be all that keeps him alive.  He understood that he was able to remain awake for days and drains his wife who had been affected by the situation as well as he.  Mr Kerry explained that he was so scared about protecting his wife and family but was also aware that he had stood up for his wife during incidents when they had been attacked.

However, he was also scared that he may snap and was capable of doing serious damage to another person.  Since the home evasion, he explained that he and his wife could not continue with a regular routine because of being spotted by a potential assailant which has occurred many times since the Court case involving the offenders of the home evasion and abuse or assaults have happened."

He gave a history of suffering from bipolar disorder and said he had been prescribed olanzapine which has the trade of Zyprexa and which is an anti-psychotic drug.  He had been on the methadone program for many years but at the time he was seen by Mr Kerr, he was taking Endone for the same purpose. 

He said that over the last years he had developed a condition known as trichotillomania which Mr Kerr describes as a disorder where the individual incurs self pain by pulling the hairs on his fingers and around his wrist area. 

Mr Kerr expressed an opinion at item 2 on page 3 that Mr Kerry suffered from the following Axis 1, clinical disorders in accordance with the DSM4 clinical approach; post-traumatic stress disorder, social phobia, trichotillomania, bipolar disorder, substance abuse.  He also described him as suffering from an Axis 2, paranoid personality disorder.  He described his psycho-social stressors as he was homeless, separated from his family, under financial stress, worried about his future, worried about his children and worried about the criminal compensation application.

His opinion is expressed in this way, item 3, page 4. 

"As mentioned, Mr Kerry had pre-existing psychological conditions but these have worsened as a result of the home evasion.  Since that time, his behaviours appear to have deteriorated such that he has been precluded from frequent organisations as well as individual health care workers.  Therefore, in my opinion, the psychological injuries are consistent with the aftermath of the incident of 21st of October 2003."

Given his lack of antecedent information to support the bizarre history given to him by the patient and given the fact that the assault occurred in October 2003 and the psychologist was seeing Mr Kerry for the first time on the 29th of May 2007, it is not surprising that Mr Courtney cross-examined Mr Kerr in relation to the causal link between his present psychological conditions and the assault. 

I have to say that I did not find Mr Kerr's responses very convincing at all.  It is simply is unsatisfactory for a psychologist to draw the conclusion he has in the absence of antecedent supporting information, the absence of commonly administered psychological tests and because of the extensive number of pre-existing and post-assault stressors that, as a matter of commonsense, would have impacted on this man's psychological stability.

In relation to the claim for loss of two teeth, Mr Kerr, in his report, says,

"On observation, he doesn't have any teeth, top or bottom, other than two isolated teeth, one either side of his mouth.  He explained that he lives on milkshakes and fluidy foods."

This leads to a consideration of the issue or causation under the Criminal Offence Victims Act, 1995.  In this regard I have considered the judgment of Holmes JA, in SAY v AZ; exparte AG (Qld) [2006] QCA 462, in which her Honour undertook a careful analysis of the principles relating to this very issue.

Her Honour's conclusions are slightly different to those reached by his Honour Judge McGill SC in LMW v. Nichols [2004] QDC 118, which her Honour analysed carefully in her reasons in SAY.

In that case his Honour had, after his usual careful and exhaustive analysis of the cases and principles relating to a causation, had settled on the proper approach as being the common law approach which had been adopted in relation to claims for compensation under the now repealed Criminal Code Scheme, SAM and SAM [2001] QCA 12, which followed the approach of Lee J in R v. Tiltman; exparte Dawe, unreported SC324 of 1995, 22nd of June 1995.

Her Honour concluded that because of statutory provisions in the Act such as section 25(7) and (8), the strict common law approach was not appropriate, although only those injuries to which the relevant offence has materially contributed will be compensable.

Her Honour said this at paragraph 23 of her judgment:

"Often a broad brush approach of the kind adopted by Thomas JA in Sanderson v. Kajewski will be necessary.  The exercise may be one of discounting or fixing on a lower percentage on the compensation scale to allow for the role of other factors rather than necessarily a strict process of apportionment.  In that exercise it is legitimate to consider the nature of the other contributing factors.  Given that the Act scheme is to require an offender to compensate his or her victim it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuing of offending." 

Her Honour was there referring to the circumstances in SAY and indeed those in the earlier case of LMW v. Nichols which involved a situation where the respondent had been convicted of a number of sexual offences, but the complainant was alleging much more extensive sexual offending by the same respondent.

In this case the non-compensable contributing factors are not attributable to the respondents, which is a very relevant factor.  It is not suggested here in any way that Mr Kerry contributed either directly, or indirectly, to his own injuries by his own conduct.

I intend to adopt a the broad brush approach.  I am not satisfied on the balance of probabilities that he suffered a loss of teeth in the incident. 

In my view a proper approach, as mandated particularly by section 26 of the Act, is to regard the bruising as a single state of injury.  For the swelling and bruising to his left eye, the bruising to the left lower part of his chest and the injury to the back and left side of his neck, I will allow him five per cent; that is the maximum percentage under Item 2.

In my view in this case his psychological injury claim should be significantly discounted for the reasons that I have indicated, and I will allow him under Item 31, five per cent of the scheme maximum, that is a total of 10 per cent.  I order that the respondents to pay to the applicant by way of compensation under the scheme, the sum of $7500.