DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant was the victim of two separate assaults, one in October 2004 and one in January 2005, by different people. As a result of each of these she suffered injuries, including psychiatric injury, and because it is necessity to assess compensation for that injury where there were two separate assaults which contributed to the psychiatric injury, the applications were appropriately brought on together. On the initial return date there had been short service of one of the respondents, so the applications were adjourned for a few days to overcome that difficulty. None of the respondents appeared on the hearing of the applications.

First incident

2. [2]
   On 25 January 2006 the respondents in the first application each pleaded guilty to one count of unlawful wounding committed on the applicant on 21 October 2004.  The circumstances of the offending are set out in the sentencing remarks of the sentencing judge; there had been a dispute between the applicant and the respondent Swan over ownership of an item of property.  He went to the applicant’s premises on 20 October 2004 to carry this dispute further, and made threats to petrol bomb her residence.  The following day he came back with the other respondent, and they went into the residence while he was armed with a firearm.  He threatened the applicant with this, and when he realised he did not have the appropriate ammunition, the respondent Postlethwaite went out to his car and obtained the appropriate ammunition, after which the respondent Swan loaded and fired what he believed was a blank at the applicant.  However, even blanks can injure, and on this occasion the applicant suffered an injury in her left leg near the left knee.

3. [3]
   The applicant was taken to hospital where she remained for eight days, and she underwent two surgical procedures on the wound. The shot had produced a superficial but relatively extensive wound which was initially debrided and subsequently closed. There was no neurovascular injury or injury to the knee joint itself, although the applicant complains of ongoing symptoms in the left knee and problems with the scarring. On 30 May 2008 she was seen by an orthopaedic surgeon, Dr Wallace, for the purposes of a report.  He said that the treatment had been appropriate and that her condition was now stable, and that there was a full range of motion in the left knee which was stable with no neurological deficit.

4. [4]
   There is a relatively extensive scar on the outer aspect of the left knee, running to some extent down the leg. This was seen by a plastic surgeon, Dr Jenkins, for the purposes of a report in August 2008.  The scar was pale, approximately 90 mm long and up to 30 mm at its maximum width.  He did not consider any form of scar revision appropriate.  He regarded the scarring as minor overall.

5. [5]
   The applicant in her affidavit said that she experiences numbness around the scarring as well as pain and restricted movement of the knee, which also locks, gives way, and swells from time to time. She said she used a knee brace for support and takes Panamax on occasion for the pain, which interferes with her ability to interact with her daughter, drive a manual car and do heavier work around the house. I am somewhat wary about these complaints of symptoms because they do not seem to me to be supported with what was found by the orthopaedic surgeon on examination, and I discount them.

6. [6]
   The applicant submitted that separate awards should be made under Item 24 – Gunshot/stab wound (minor), and Item 27 – Facial disfigurement or bodily scarring (minor/moderate).  In MR v Webb [2001] QCA 113 Wilson J at [16] noted that an applicant was prima facie entitled to compensation for all of the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so overcompensating the victim.  That was applied in Zaicov v Jones [2002] 2 Qd R 303 where it was said that an applicant who had suffered scarring as a result of a gunshot wound might be allowed a separate amount for scarring, but it was equally open to regard the scarring as part and parcel of the gunshot wound:  p 307.

7. [7]
   Such an approach was approved more recently by the Court of Appeal in Wren v Gaulai [2008] QCA 148, where it was also noted that assessment under just one item would produce a higher percentage assessment in respect of that item than would have been the case had there been a separate assessment under a different item for one aspect of the injury:  [28].  In that case it was held appropriate to assess injuries to the face under Item 8 in respect of severe facial fractures, and not to make a separate assessment under Item 28 in respect of the facial disfigurement which was substantially attributable to the fractures.

8. [8]
   In the present case I do not think it is appropriate to make separate allowance for the scarring on the leg. The scarring in itself is not particularly conspicuous, and is described by the medical specialist as minor scarring. I expect the applicant is particularly conscious of it, and sensitive about it, but objectively it is not bad scarring. One would expect that some scarring would almost inevitably follow from a gunshot or a stab wound. In my opinion an assessment should be made under Item 24 for this gunshot wound, taking into account that one of its consequences was some permanent scarring which is visible but not particularly conspicuous and is not disfiguring, without making a separate allowance for scarring, which if it were allowed would only be for a small amount, in the order of 2% or 3%.

9. [9]
   While this injury does fall within Item 24 as a minor example of such an injury, one would expect that almost any gunshot or stab wound would be a matter of some significance, and that is reflected in the ranges provided in the schedule.  In the present case, this was a gunshot wound rather than a stab wound, it required surgical attention involving a period of hospitalisation over some days, it produced some continuing adverse symptoms around the knee, and it has led to some permanent scarring albeit of a minor nature.  In those circumstances, in my opinion the appropriate allowance for the physical injury received is 10% under Item 24.

Second incident

10. [10]
    Before assessing the psychiatric injury, I will turn to the other assault. On 3 November 2006 the respondent McGlede pleaded guilty to one count of assault occasioning bodily harm committed on the applicant on 18 January 2005, and an offence involving a different complainant.  On the sentence hearing the prosecution case, which does not seem to have been disputed by the defence, was that the respondent, who had previously been in a de facto relationship with the applicant over a period of years, while at the applicant’s house struck her in the face with a closed fist, then struck her repeatedly with both arms and closed fists, grabbed her by the head and bit her on the nose and face, and then grabbed her by the hair and banged her head repeatedly into a coffee table until she lost consciousness.

11. [11]
    The applicant was taken to hospital where she was found to be suffering extensive bruising, abrasions to her face and laceration to her nose. A report by the doctor at the hospital noted that the applicant had a large area of soft tissue swelling over the right cheek, a contusion above the right eye, and multiple fractures of the nasal bones. The wound to the nose was not sutured. She complained of decreased sensation at the tip of the nose and some visible scarring there, and around her left eye. Dr Wallace did not think that she had had any significant bone injury to her face.  Dr Jenkins did not regard the small cutaneous scar on the nose as conspicuous, and hence it was not appropriate for revision.  Again he thought this constituted only a minor degree of scarring.  The facial scarring is not obvious in photographs of the applicant taken on 25 February 2008 exhibited to her affidavit.

12. [12]
    With regard to physical injuries, it was submitted that an allowance should be made for bruising and laceration under Item 1, the fractured nose under Item 3, and facial disfigurement or bodily scarring under Item 27.  The considerations referred to earlier are applicable here as well.  In my opinion it is appropriate to make separate allowances for the bruising and laceration under Item 1 in respect of the more superficial injuries to the face, and under Item 3 for the fractures to the nasal bones, on the basis that the quite minor scarring is accommodated within the award made in respect of Item 1.  Bearing this factor in mind, I will make an assessment at the top of the range under Item 1 of 3% in respect of the bruising and laceration, and I will allow 6% under Item 3 in respect of the fractures to the nose, bearing in mind that they seem to have healed with little continuing adverse effects.

Mental or nervous shock

13. [13]
    That leaves the question of mental or nervous shock. The applicant was seen by a psychiatrist, Dr Steinberg, on 21 February 2008 for the purposes of a report.^[1]  He expressed the view that she is suffering from chronic post traumatic stress disorder which most likely began after the shooting.  He attributed her condition at the time that he saw her to both of the attacks.  He did not consider that she also suffered from a major depressive disorder.  He did not consider that she was suffering from bipolar affective disorder.  He was of the opinion that psychiatric treatment was appropriate to manage the post traumatic stress disorder, although her prognosis was guarded at best and he thought that some of her symptoms would not be amenable to treatment.  The post traumatic stress disorder was preventing her from working.

14. [14]
    Dr Steinberg did note that there were a number of features of some significance in her history, but he did not believe that the injuries had exacerbated a pre‑existing condition.  From his reports overall it seems to me that his view is that the post traumatic stress disorder is a discrete psychiatric injury which has been caused specifically by these two incidents, and is separate from any pre‑existing difficulties the applicant may have had.  The only connection would seem to be that there was a risk of deterioration of her condition under certain circumstances associated with other problems, a matter which could not affect the assessment of compensation anyway.  I adopt his evidence, and in those circumstances, it is unnecessary for me to address in these reasons the details of the other aspects of her history.

15. [15]
    Medical records provided to the psychiatrist showed a referral to a treating psychiatrist in February 2005, followed by medication. Dr Steinberg in a report dated 17 November 2008 expressed the opinion that the post traumatic stress disorder started after the shooting in 2004 and was made worse by the assault in 2005, and that he would attribute 80% of the condition thereafter to the shooting with 20% to the assault in 2005.  That assessment is of assistance to me, though I do not regard myself as bound by it.

16. [16]
    In her affidavit the applicant said that she regularly thinks about the shooting and the assault, and is very anxious and on edge all the time, particularly if she hears a loud noise. She is wary and frightened in public, and tries to leave her house only when she has someone with her. She has difficulty sleeping and has dreams about being assaulted, and she is constantly checking that the house is secure. She now has a watchdog. She has been taking various medications, including Valium, at different times since the incident. Because she feels unsafe when outside the house, she believes she will have difficulty in obtaining employment which she had intended to do when her daughter, who is still quite young, started school. The applicant’s social life has been severely curtailed. She is very conscious of and embarrassed by the scars, and these serve to remind her of the incidents.

17. [17]
    In my opinion the approach to be adopted in the circumstances of this matter is essentially that laid down by the Court of Appeal in SAY v AZ [2007] 2 Qd R 363; in respect of each of the matters, an assessment should be made of the psychiatric injury, and that assessment should then be adjusted to allow for the fact that the other offence was a contributing cause to the psychiatric injury suffered, at least after January 2005.  For practical purposes, the same result is produced by making an assessment of the compensation appropriate for the psychiatric injury, and then dividing it in the appropriate way between the two applications.

18. [18]
    I assess the psychiatric injury as falling within Item 32 in the schedule, as an example of moderate mental or nervous shock.  Bearing in mind that the applicant sought medical treatment and medication fairly soon after the second assault, and her life appears to be significantly adversely affected by this condition, and bearing in mind the limited prospect of improvement referred to by the psychiatrist, it is appropriate to make an assessment towards the upper end of the range of Item 32, and I assess 18% overall.  In the circumstances, I will reduce that by 4% to 14% in the first application because of the contributing effect of the subsequent assault, and I will reduce the assessment by 14% in the second application, because of the contributing effect of the initial shooting.

Conclusion

19. [19]
    It follows that, in the case of the first application, compensation is assessed as follows: Item 24 – gunshot/stab wounds (minor): 10%; Item 32 – mental or nervous shock (moderate): 14%; total 24%.  There was nothing in the material to suggest that the applicant contributed in any way to either of the injuries suffered by her.  In particular, the detailed sentencing remarks of the sentencing judge do not suggest that there was any contributing behaviour on her part.  It is therefore not appropriate to make any reduction on this basis.  The assessment when applied to the scheme maximum of $75,000 produces an amount of $18,000.

20. [20]
    It is then necessary to make an order under s 26(6).  In my opinion in the present case it is appropriate to make an order under paragraph (a) for separate liability of each respondent scaled according to that person’s direct and material contribution to the injury.  The two respondents were sentenced differently, and it is apparent from the sentencing remarks that the sentencing judge viewed the criminality of the respondent Swan as significantly greater.  He was the one who actually presented and discharged the firearm, and was responsible for bringing it to the applicant’s premises.  In the light of this, I consider that the burden of the compensation order should fall principally on the first respondent.

21. [21]
    In the first matter therefore I order that the first respondent pay to the applicant the sum of $13,500 compensation in respect of the injuries suffered by her as a result of the offence for which the first respondent was before this court on 25 January 2006, and I order that the second respondent pay to the applicant the sum of $4,500 compensation in respect of the injuries suffered by her as a result of the offence for which the second respondent was before this court on 25 January 2006.

22. [22]
    In the second application, there is one respondent. The assessment in relation to this matter may be summarised as follows: Item 1 – bruising and laceration: 3%; Item 3 – fractured nose: 6%; Item 31 – mental or nervous shock: 4%; total 13%.  Again there is nothing in the material to suggest that the applicant in any way contributed to the injuries suffered by her.  There is therefore no reason to reduce the compensation on this basis.  When this assessment is applied to the scheme maximum the result is an amount of $9,750.

23. [23]
    In the second matter therefore I order that the respondent pay to the applicant the sum of $9,750 compensation in respect of the injuries suffered by her as a result of the offence for which the respondent was before this court on 3 November 2006.  There is no jurisdiction to make any order in respect of the costs of either application.