DISTRICT COURT OF QUEENSLAND

1. [1]
   On 19 January 2007 the respondent pleaded guilty to a number of offences including one count of malicious acts with intent.  He was sentenced on 23 January 2007.  The circumstances of that offence were that the applicant, a serving police officer, attended the respondent’s residence with another police officer.  The respondent was holding a knife behind a screen door, and initially threatened to use the knife on himself, and then threatened to burn the house down.  He then left briefly and returned with a can of petrol and threw petrol over the officers.  The applicant was struck in the face and front on and forcibly restrained the respondent so as to arrest him, and to prevent him from igniting the petrol.  The sentencing judge remarked that it must have been a very very frightening situation for them and their health and safety were clearly capable of being very seriously compromised.^[1]

2. [2]
   In his statement after the incident the applicant said that he was struck on the right side of his face and the upper arms and body, and after he was splashed he could smell petrol and he felt a strong burning sensation to his face and eyes.^[2]  He had petrol in his right eye and on his face, and the fumes were making it difficult for him to see and breathe.  He also had a burning sensation on his arms and chest.  He was afraid that the respondent would ignite the petrol.  A struggle then ensued with the respondent before the applicant and his partner succeeded in overcoming the respondent and handcuffing him.  Subsequently the applicant’s partner poured some water across his face, the applicant went into a shower where he rinsed off parts of his body with water, and then went outside where he removed his shirt and some body armour that he was wearing and received treatment from ambulance bearers.

3. [3]
   He subsequently went to the Redlands Hospital emergency department. He was found to have erythema to the anterior abdominal wall and right eyelids, with the right conjunctiva injected and inflamed.^[3]  There was also a small abrasion on his left wrist.  The doctor diagnosed a mild chemical burn to the anterior abdomen, the right conjunctiva and the right eye, and an abrasion to the left wrist.  He was showered with soapy water and advised on analgesia and skin care and was discharged.  The applicant said in the witness box that he had red welts across his chest from his right shoulder, particularly in the area which was beneath the pockets of his uniform shirt.

4. [4]
   In his victim impact statement dated 24 October 2006^[4] the applicant said that after the incident he was unable to return to duty for a number of days.  The marks were sore to touch or wear clothes over, his left wrist was sore and he had pain and discomfort every time he picked something up.  He had difficulty falling asleep and having restful sleep because of the pain.  He had bruising and soreness to his knees which made walking painful, which also lasted for a number of weeks before gradually going away.  Overall his physical symptoms faded over about a month.

5. [5]
   He described the petrol as producing an intensely painful burning sensation. Although there is no medical evidence to support this, the description of the red welts produced by the petrol on his body, and the intensity of the burning sensation, suggest that there may have been an allergic reaction involved.

6. [6]
   Apart from his physical injuries, he suffered psychiatric injury. He described^[5] the whole incident as having been very frightening, particularly because of fear that the petrol was going to be ignited (because of the threats of the respondent) and because the pain from the petrol splashed in his eye made him suspect that he had suffered an injury to the eye which could well result in a loss of sight.  He felt that he had to struggle in very difficult conditions, affected by the pain from the petrol and the smell of its fumes, to overcome the respondent and secure him, in order to ensure that he was not able to ignite the petrol.  After the incident he had difficulty getting rid of the smell, both from his body and from his equipment, particularly his utility belt.  The smell from the belt lasted for about two months and was a constant reminder of the incident.

7. [7]
   After the incident he felt very restless and stressed, unable to relax, angry and bitter. He did not feel he had received proper support from the police service. He spoke about one call from a police human services officer, which he found to be quite unsatisfactory. He felt that that human services officer had missed the point that he was trying to make, and as a result he did not follow the advice from that officer that he was depressed, should be on medication and needed to leave operational policing for some time. The applicant also said that at the time the human services officer spoke to him he did not want to accept that he had a problem, and that was a further reason why he did not seek treatment at that time. He frequently recalls the incident, being for example reminded of it every time he smells petrol.^[6]

8. [8]
   The applicant was to some extent cross‑examined as to his credit.  Having seen and heard the applicant I am prepared to accept his evidence as reliable.  I do not consider that there is any significance in the difference between the description of the incident given by the applicant in his statement and the description given by the other police officer in his statement.  He said that after he had been to the Redlands Hospital he did not see a doctor again about his physical injuries, as he expected that they would clear up in time, as they did.  There were some photos taken by scenes of crime people but they are not in evidence.

Medical evidence

9. [9]
   The applicant was seen by psychiatrist Dr McGuire on 4 October 2007 for the purposes of a report.^[7]  She diagnosed the applicant as suffering from post traumatic stress disorder, symptoms of which he exhibited to a moderate degree.  She noted that he had to some extent transferred his anger on to the Queensland Police Service as a result of this incident, and thought he would benefit from trauma counselling from a counsellor not involved in the police service.  She thought it likely that the symptoms would diminish over time.

10. [10]
    Dr McGuire recorded complaints of disturbed sleep, unpleasant dreams which she attributed to the incident, feeling a loss of confidence in his skills, hypervigilance, difficulty in dealing with people particularly a feeling of alienation against the bureaucracy in the police service, and increased drinking and smoking since the incident.  Dr McGuire noted that among his symptoms were a lack of trust, a lowered self-esteem, self-blame, avoidant behaviour and irritability.

11. [11]
    Dr McGuire referred to some other matters in his history.  In 2000 there was an incident at work when he shot an offender.  This did not seem to have had the same effect on him.  He had seen a psychiatrist after that incident, but there was no diagnosis of post traumatic stress disorder.  After that his first marriage broke down, which produced a major change in his life, although he has now remarried and things were going reasonably well.

12. [12]
    Dr McGuire was cross-examined with a view to showing that the applicant did not meet the criteria for post traumatic stress disorder, particularly because insufficient of the indicia of persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness referred to in Criterion C for the diagnosis of post traumatic stress disorder in DSM‑IV were not present.  This criterion requires three or more indicia, but notwithstanding the cross‑examination about them Dr McGuire maintained and I accept that three or more were present with the applicant.

13. [13]
    Dr McGuire was also cross‑examined about the effect of the other incidents referred to, the shooting and other incidents considered dangerous, life‑threatening or involving the loss of life or serious injury referred to in general terms in the victim impact statement.  However, she maintained that the applicant’s focus was on the incident the subject of this application, and that the post traumatic stress disorder related to this particular incident.  She said that there was no indication that the applicant had post traumatic stress disorder prior to this incident, or indeed many of the symptoms.  She did not accept that the condition was the result of the cumulative effect of all of the events that had happened to the applicant up to that time.  Overall her impression was that the post traumatic stress disorder was related solely to this incident.  He had a number of symptoms specific to this incident, although she would have expected some impact from his earlier life, in the sense that everything that had happened would have had some effect on him.  She did not say, indeed was not asked, whether the post traumatic stress disorder was more severe than it would otherwise have been had it not been for the other incidents.  She was also not asked whether, had the applicant undertaken the treatment recommended by the human services officer who was seen closer to the time of the incident it would have made any and what difference to the course of his condition.  Dr McGuire said that it was not unusual for sufferers of post traumatic stress disorder not to seek assistance for their condition, because of a desire to avoid reliving the incident in connection with any counselling.

14. [14]
    Dr McGuire said that she was conscious of the problem associated with self-reporting but she was confident that the applicant was not malingering.  It was not her view that the applicant suffered significant psychological problems prior to this incident.  She did not agree that a desire to have given evidence^[8] was inconsistent with avoidant behaviour, since this is something which is common with sufferers of post traumatic stress disorder, as a means of dealing with their feelings of anger against the person responsible for their condition.

15. [15]
    The applicant said he had been receiving psychiatric treatment since February 2009, though it appears that this was triggered more by some stress while he was at work associated with other problems arising from his work. I do not have evidence from the treating psychiatrist, and this happened long after Dr McGuire saw the applicant so she was no in a position to comment on it, or on the extent to which any current problems of the applicant are associated with matters other than the post traumatic stress disorder.  In the absence of further medical evidence either from the treating psychiatrist or from Dr McGuire all I can do is proceed on the basis that any worsening of the situation, or any development inconsistent with the expectation of Dr McGuire, is attributable to factors other than the offending and is therefore not a matter which I should take into account in making the assessment.  The only other significance of the fact that treatment is now being received is that it is likely that any benefit to the applicant of such treatment will now occur.  Presumably the effect of any psychiatric treatment is that the consequences to the applicant of the post traumatic stress disorder will be ameliorated to some extent.

Respondent’s submissions

16. [16]
    The respondent filed an affidavit on 22 October 2009.  The contents of the affidavit present as submissions rather than factual matters.  With regard to the physical injuries, it was submitted that these were relatively minor, with an allowance of 2% to 3% appropriate in the circumstances, and that the applicant had contributed to his injuries by failing to seek appropriate follow up treatment as noted in the medical report.  However, the report from the Redlands Hospital^[9] does not suggest either that follow up treatment was appropriate or that the applicant was advised to have follow up medical treatment.  It simply notes that the applicant had not been followed up since that date.  The applicant’s approach, of waiting to see whether the condition got better on its own, which it did, was in my opinion reasonable, and there was no medical evidence that any further medical treatment would have produced a different outcome.

17. [17]
    The respondent submitted that the applicant had not exhibited the symptoms required to enable diagnosis of post traumatic stress disorder. However, the question of whether the applicant was suffering from that condition was essentially a matter of expert medical assessment, and the expert evidence was to the effect that he was suffering from that condition. Dr McGuire was not shaken in cross‑examination on this point, and I accept that evidence.  Although in principle it would be possible to show by argument that uncontradicted expert evidence was wrong, I am not persuaded by the applicant’s arguments in this matter to reject Dr McGuire’s evidence on this point.

18. [18]
    The respondent submitted that the applicant’s behaviour on the night suggested that he already had hypervigilance prior to this incident, but I am not persuaded that the matter to which he refers, the prompt drawing of his sidearm when the respondent armed himself with a knife, was evidence of pre‑existing hypervigilance.  It was I think reasonable in the circumstances given that the respondent had armed himself with a large knife and was obviously in a position to unlock and open the security screen door which was between them.

19. [19]
    Reference was made to a letter which the applicant had written to a police union journal before this incident complaining about inadequate sentencing. I expect that that attitude is common among police officers; he is by no means the only person who has criticised courts for what is seen as inadequate sentencing. The respondent submitted that most of the applicant’s problems were attributed to other incidents, or the marriage breakdown, and that only a small amount of significance should be attributed to this particular incident. That, however, is inconsistent with the evidence of Dr McGuire.

20. [20]
    It was also submitted that the applicant had failed to take appropriate steps with a view to mitigating his condition, in failing to seek treatment when advised to do so by the human services officer, and in failing to obtain counselling as recommended in Dr McGuire’s report.  Dr McGuire has explained that a failure to seek treatment is commonly a feature of this condition, and the applicant has provided a reasonable explanation for his failing to seek treatment initially because of the way he reacted to the interview with the human services officer, and because of a belief at that time that he did not need treatment for this.  I am not persuaded that that was unreasonable or that there is any basis for treating this as a ground for reducing compensation under s 25(7) of the Act.

21. [21]
    The report from Dr McGuire was not provided directly to the applicant but rather to his solicitors, although I expect that the solicitors would probably have communicated the fact that Dr McGuire recommended counselling.  However, there is no medical evidence as to the significance in terms of the overall symptoms of the delay between when that report was received (it is dated 9 October 2007) and February this year when he did begin treatment with a psychiatrist.  There is also the consideration that it may be that treatment by a psychiatrist will be more effective and produce a better outcome than the counselling recommended by Dr McGuire.  On the whole I am not persuaded that there is a proper basis upon which I could make any particular reduction under this heading.

Assessment

22. [22]
    It was submitted on behalf of the applicant that allowances should be made under Item 1 separately for the injury to the wrist, the knees and the eye, and as well there should be an allowance under Item 21 in respect of the injury to the chest.  For reasons which I have expressed previously,^[10] and to which I adhere, in my opinion Items 1 and 2 in the Schedule are appropriately applied by reference to the totality of the matters which can fall within that description suffered by a particular applicant, at least with reference to a particular occasion.  Accordingly in the present case the injury to the wrist, knees and eye all fall within one or other of those items.  The injury to the eye is I think properly identified as a laceration or something analogous to it, rather than as a partial injury under Item 29 dealing with loss of vision.  Despite the applicant’s concerns at the time there was no significant loss of vision at any time as a result of the injury to the eye, though that injury would in itself have been quite unpleasant at the time and quite disconcerting.

23. [23]
    Because of the fact that the injuries extended to the eye, and because they would have been very painful at the time I think that they fall within Item 2, but they did clear up reasonably quickly and there could easily have been much more extensive injuries still falling within Item 2.  On the whole I will allow 3% overall under Item 2.

24. [24]
    That leaves the chest injury. This was claimed under Item 21, in respect of the inflamed skin associated with the petrol burn which for a time after the incident affected in particular the chest of the applicant.  This was initially very painful, and subsequently uncomfortable and disconcerting, but it does appear to have cleared up reasonably quickly.  On the whole I think the appropriate approach is to treat the injury as falling within Item 21 but allow the minimum amount under that item of 2%.  That produces a total for the physical injuries of 5%.

25. [25]
    With regard to mental or nervous shock, as I say I accept the evidence of Dr McGuire and I accept that the applicant suffered post traumatic stress disorder to a moderate degree as a result of this incident.  The indications are that the condition will improve, and no doubt that will be assisted by the current psychiatric treatment.

26. [26]
    In LMW v Nicholls [2004] QDC 118 I reviewed a number of earlier decisions where courts had made awards in respect of mental or nervous shock in the form of post traumatic stress disorder and concluded that they suggested that where there was a moderate post traumatic stress disorder suffered which then slowly abates but with some persistence of symptoms an award in the range of 10% to 15% was commonly made; a condition which did not and would not abate would justify an award in the range of 15% to 20%.  This was obviously only a very general conclusion, but for what it is worth my impression is that subsequently the general run of awards has been broadly consistent with that conclusion.  In any event, it seems to me to be a reasonable enough approach.  That suggests in the present case an allowance of 10% to 15%.

27. [27]
    That is also consistent with the fact that the applicant was able to continue in his pre‑existing employment, although that employment and his relationship with his employer have been adversely affected by this to some extent.  The evidence does indicate that the relationship has been adversely affected by other matters as well, so this is not the only relevant factor in that respect, but it does seem that it has been adversely affected by this.  The condition would also have adversely affected his private life to some extent, though the evidence does not suggest the sort of substantial or dramatic effects sometimes met with in other cases.  There is also the consideration that it may well be that to some extent the condition, though itself caused only by this incident, came on top of some pre‑existing problems, or has been made worse by pre‑existing problems.  In the absence of any medical evidence in relation to this point no great significance can be attributed to it, and it may be simply a matter of recognising that there are matters other than this incident which have had some effect on the applicant.  Nevertheless I think this is a relevant consideration.  On the other hand, the applicant in the witness box did still seem to be quite upset about the incident.  On the whole I find that an appropriate allowance for the mental or nervous shock is 12%.  There is nothing to suggest the offending as such was in any way contributed to by the applicant, and indeed no such submission was made by the respondent.

28. [28]
    That produces a total percentage of 17%, which when applied to the scheme maximum is an amount of $12,750. I therefore order that the respondent pay the applicant $12,750 compensation in respect of the injuries suffered by the applicant by reason of the offence for which the respondent was before the court on 19 January 2007.  There is no power to make any order for costs.