Lapresle v Meiers[2009] QDC 391

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s. 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by the offence of serious assault committed by the respondent on 26 August 2007.

2. [2]
   On 23 July 2008 the respondent pleaded guilty to 1 count of serious assault. The respondent was sentenced to 6 months imprisonment with immediate release on parole. A conviction was recorded.

3. [3]
   The respondent was served with the originating application and supporting material on 12 November 2009.^[1]

4. [4]
   There was no appearance by or for the respondent at the hearing of the application.

Circumstances of the offence

5. [5]
   The applicant is a police constable. The respondent had taken between 20 and 100 Panadol tablets in an attempt to take her own life. Ambulance officers were in attendance at the scene and requested the assistance of police. The applicant attended the scene and heard screaming coming from the house.

6. [6]
   The respondent indicated to the applicant and his partner that she was intending to leave the house by car. The applicant attempted to talk to the respondent to calm her down. She attempted to walk out the front door. The applicant and his fellow officer each took hold of one of her arms. She became aggressive.

7. [7]
   The applicant and his partner began escorting the respondent to the police car when she bit the applicant on the right forearm. The bite did not break the skin.

Injuries and medicalreports

8. [8]
   The applicant in his affidavit states:^[2]

“9. Initially I was extremely concerned about having contracted a contagious disease as a result of the bite. I cleaned the wound which was red and swollen. I could see the bite marks in my skin.

10. I then travelled to the Redcliffe Hospital to further assist other officers in the restraint of the Respondent and whilst there, antiseptic medication was applied to the wound.
11. On the 30^th of August 2007 I attended my local doctor who provided me with some information regarding blood testing and potential infections.
12. Whilst I understood that the bit had not penetrated the skin I was still anxious about the possibility of infection.”

9. [9]
   No further evidence has been provided to the Court in relation to the physical injuries suffered by the applicant.

10. [10]
    The applicant in his victim impact statement^[3] discusses the anxiety the bite caused him. He states that he was continually worried about any possible transmission of disease, despite the skin not being broken. He states that his relationship broke down as a result of the possibility of having contracted a disease and the strain it put on the relationship. He states that he became depressed and endured sleepless and restless nights. He states that the blood tests related to the bite were clear, and he did not contract a disease.

11. [11]
    The applicant was examined by Dr Nigel Prior, Consultant Psychiatrist, on 13 March 2009. Dr Prior in his report dated 16 March 2009^[4] states that the applicant suffered from anxiety, decreased energy, decreased libido and mild insomnia.^[5] Dr Prior states that the applicant is now more aware of safety concerns, in particular the chance of being bitten and needle stick injuries.

12. [12]
    Dr Prior concluded that the applicant had suffered from an adjustment disorder with anxious and depressed mood for approximately 4 months which is now in remission. Dr Prior states that when the adjustment disorder was “operating” it “was of a moderate level at the mild end of the range of severity.”^[6]

Relevant principles

13. [13]
    The assessment of compensation is governed by Part 3 of the Criminal Offence Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)).

14. [14]
    The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness.  The amount of compensation cannot exceed the scheme maximum (s 25(2)).  The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)).  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)). 

15. [15]
    If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).^[7]

16. [16]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[8]  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The court explained:

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”^[9]

Assessment

17. [17]
    Ms Cappellano for the applicant submitted in her written outline that compensation in accordance with the items in the compensation table be assessed as follows:

Item 1 – Bruising/laceration etc. (minor/moderate) - 1% ($750)

Item 32 Mental or nervous shock (moderate) 10% ($7,500)

18. [18]
    I accept that the bruising caused by the bite should result in an award of 1% of the scheme maximum. ($750)

19. [19]
    The applicant suffered from an adjustment disorder. Despite the distressing incident he was resilient in his immediate return to work. The applicant’s relationship broke down as a result of the incident.

20. [20]
    In my view the appropriate assessment for mental or nervous shock is 10%. ($7,500)

21. [21]
    There is no behaviour of the applicant that contributed directly or indirectly to her injuries (s. 25(7)).

22. [22]
    The total assessment is $8,250.

Order

23. [23]
    The respondent pay to the applicant the sum of $8,250 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of serious assault, which led to the conviction of the respondent in the District Court at Brisbane on 23 July 2008