Sweeney v Cullen[2010] QDC 115

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for injuries sustained as a result of the offence of assault occasioning bodily harm, of which the respondent was convicted on his plea of guilty before me in the Gladstone District Court on 22 April 2009.

I sentenced the applicant to three years' imprisonment for this offence.  I ordered that his parole release date be fixed on 12 September 2009 and declared 222 days as time already served under the sentence.

On or about 14 June 2008, while the applicant was at a local nightclub known as Bojangles Piano Bar, the respondent struck him with a single blow to the head, causing him to fall backwards and hit the back of his skull. 

As a result, as I described it in my sentencing remarks, he "suffered a fracture to the back of his skull and also that because of the movement of the brain inside the skull, he suffered bruising and swelling to the brain."

To put it in terms of the medical evidence before me, a CT cranial scan taken two days later revealed evidence of an occipital fracture and bilateral frontal lobe contusions, more obviously on the left side.

In my sentencing remarks, I also described the blow, which was a king-hit, as a cowardly attack.  I also noted that there was no suggestion that the applicant had done anything to the respondent before the attack. 

Immediately following the assault, the applicant experienced excruciating pain in his head, neck, back and left ear.  He lay bedridden with this excruciating pain.  He could not stand up because of it and was very disorientated and dizzy.  He was vomiting continuously and could not keep down any food.  He could only have sips of water. 

His room had to remain in complete darkness because the sunlight aggravated the pain in his eyes and his head.  His condition did not improve, with the result that he was subsequently admitted to hospital and given morphine and painkillers for his head pain.  He was admitted to hospital on the 18th of June 2008. 

According to his affidavit, he has subsequently had short term memory loss on a daily basis and has also suffered speech impairment.  At the time that the affidavit was sworn on 14 December 2009, he was still experiencing constant headaches and taking painkillers on a regular basis. 

He has a tight feeling in his head most of the time.  He also still suffers from neck pain and muscle spasms.  The muscle spasms in his neck have, in fact, increased.  He also gets back pain and sharp twinges of pain around his skull on and off on a regular basis.

The material filed on behalf of the applicant, therefore, is evidence that he has and continues to experience feelings of pain and discomfort.  It also establishes that he experiences an ongoing deficit to his cognitive and executive function and also suffers from the psychological consequences the offence has had upon him.

In relation to the physical injury, Dr Sandstrom, the neurologist who originally assessed him on 16 October 2009, notes that there had been a pre-existing cervical dystonic tremor which had not responded to botulinum toxin injections.  This condition followed an injury to his C5 vertebrae in a car accident when he was 15 years of age.  He was 47 at the time of the assessment.

Dr Sandstrom states that the pre-existing cervical dystonic tremor was ignited following the closed head injury and that the applicant has suffered further with vagueness, impairment of recent memory function, difficulty in pursuing a conversational line, occasional absences, impaired left-sided auditory acuity, and non-specific headaches over the cranial vault and posterior cervical and subnuchal regions.

Following a further assessment on 9 November 2009, he expressed the opinion that the tremor was exacerbated since the closed head injury with the cognitive and executive function changes almost certainly relating to the substantial closed head injury.

On 11 March 2010, he re-evaluated the applicant's neurological status and concluded that the applicant continues to experience a chronic daily headache pattern, a prominent cervical dystonic tremor and occasional sensory disturbances involving the left lower limb. 

He states that on this occasion, there was evidence of a prominent cervical dystonic tremor, principally to the right side, and mild personality abulia which relates to the previous frontal lobe injury. 

He suggests that the applicant's current problems relate primarily to the assault and that at a convenient time he may benefit from a further trial of botulinum toxin therapy in relation to both the chronic daily headache pattern and to the cervical dystonic tremor.

The applicant has also been assessed on two occasions by DrKeen, a consultant psychologist, most recently on 28 August 2009.  During the first assessment 13 months earlier, in response to Dr Keen's query about how bad the applicant would classify the trembling of his head before and after the incident on a scale of 100, he gave scores of 10 and 80 respectively. 

In his second appointment, the applicant mentioned that the tremor of his head had probably increased slightly since the initial assessment in August 2008.  In his conclusions, DrKeen says in relation to this, "His pre-existing vertebral dystonia has exacerbated since the alleged incident." 

He says that MrSweeney, the applicant, reported that following the incident of the alleged assault, his vertebral dystonia has become significantly aggravated and observes that since then, he has been experiencing severe pain in his shoulder and neck areas, and has been on heavy painkillers. 

He has also identified a deficit in the applicant's cognitive skills compared to his position before the assault.  He considers that this deficit seems to be related to the incident of the head injury associated with that assault. 

In relation to this, Mr Clarke submits that Dr Keen's opinion supports the proposition that the applicant's general intelligence has diminished from high average prior to the assault to borderline level at the time of Dr Keen's first report, and to the extremely low level at the time of the second report, likely due to the head trauma associated with the assault. 

As Mr Clarke submits, the problems with Mr Sweeney's cognitive capacity also appear to be associated with the frontal lobe damage.  Dr Keen also concluded that the applicant's state of mood and effect meets the DSM-IV criteria for diagnosis of a posttraumatic stress disorder, together with a major depressive disorder.  He says that the applicant reported depression, anxiety and intrusive thoughts about the incident of the alleged assault. 

He also says that on the basis of his assessment and the applicant's narration of his condition, it appears that the applicant has been experiencing symptoms of hyper arousal and intrusive thoughts that seem to be consistent with formal diagnosis of a posttraumatic stress disorder (DSM-IV, 309.81) and major depressive disorder (DSM-IV, 296.32).

As the applicant has been experiencing these symptoms since the incident, Dr Keen describes the symptoms as chronic.  He also describes him as experiencing moderate to severe symptoms of posttraumatic stress disorder, together with major depressive disorder. 

In his submission, Mr Clarke refers to some confusion that appears in the reports which are in evidence, primarily on the part of Dr Sandstrom, that the applicant suffered from depression prior to the assault.  As he correctly submits, DrFichtner's affidavit confirms that whilst the applicant was treated for his cervical dystonic tremor by the use of medication used in the treatment of depression, he was not prescribed that medication, nor had he sought treatment for a depressive condition. 

Therefore, I find that the applicant was not suffering from any pre-existing depressive condition at the time of the assault.

Dr Keen's opinion is consistent with the applicant's description of his state of mind in his victim impact statement, which is dated on 6 April 2009.

In that statement, he says that he has trouble communicating with people and gets very anxious when in public.  He also says that he does not go out anywhere at night anymore to socialise because he is on edge all the time and does not trust anyone.  He says that he stays at home and watches movies by himself or with his mother. 

He also says that his outlook on life has changed dramatically and he feels lost.  He believes that his life will never be the same again.  Another reason that he does not go out at night anymore is because of fear of retribution. 

He observes that he has separated since the assault and will probably never be in a relationship again.  The evidence before me supports the proposition that the assault and its physical and psychological consequences to him materially contributed to the separation. 

He also compares his situation before and after the incident as follows:  "Before the incident I was a happy and outgoing person with a happy de facto relationship, with lots of friends, socialising on a regular basis, great prospects and future at work and in general, but now I am withdrawn and on edge all the time and always thinking of what the future holds for me."

"When people are talking to me, I forget what they are talking about, and have to withdraw from conversations.  I also have trouble with my speech on and off, and have problems when thinking and speaking.  This is having a massive impact on my relationships, friends, work, self confidence and my quality of life in general."  Dr Keen suggests that the applicant may benefit from medical and psychological treatment concerning his combined symptoms of major depressive and posttraumatic stress disorders. 

As he suffers combined symptoms of two psychiatric conditions, he suggests that psychological and medical treatment of his condition may last about 12 months.  He considers that the applicant may also benefit from attending inpatient treatment to manage his posttraumatic stress symptoms. 

Dr Keen says that there may be inpatient services available through the Greenslopes Hospital in Brisbane.  He says that the cost of 12 months of psychological treatment through a private psychologist and inpatient intervention for 12 months may amount to $35,000. 

In these circumstances, it is submitted on behalf of the applicant that it is appropriate for the Court to make an award in respect of the physical injury of the fracture to the back of the skull and related contusions, and even taking into account the pre-existing tremor condition resulting from the car accident, the Court should find that there has been a marked exacerbation of that condition and further symptoms consistent with neurological deficit following the closed head injury as a direct consequence of the assault.

It is also submitted that it is appropriate for the Court to accept the opinion of Dr Keen as supporting the conclusion that the applicant has suffered mental or nervous shock within the compensation table which is schedule 1 to the Act. 

It is submitted that compensation should be assessed by reference to that table, with reference to item 11, which is fractured skull (brain damage - severe), for which the available range of compensation with reference to the scheme maximum of $75,000 is 25 per cent to 100 per cent, and also under either item 32 or 33 of the table relating to moderate or severe mental or nervous shock respectively.

In the case of moderate nervous shock, the range of compensation available with reference to the scheme maximum is between 10 and 20 per cent, and for severe mental or nervous shock the range is between 20 and 34 per cent.  It is submitted that the extent of the physical injury should attract an award under item 11 in excess of 60 per cent of the scheme maximum. 

The respondent has not appeared on the hearing of this application.  He was personally served with the originating application, and the applicant's affidavit and that of Dr Keen on 22 December 2009 by a District Court bailiff, who has deposed to this in an affidavit.  The bailiff has also deposed that on 11 March 2010 he served the respondent with DrFichtner's affidavit.  The respondent identified himself to the bailiff as the person who was the subject of the application.  In the circumstances, I proceed in the respondent's absence.

The offence of assault occasioning bodily harm on the respondent was a personal offence; therefore section 24(1) of the Act is satisfied.  The threshold question which arises is one of causation. 

In SAY v. AZ; ex parte A-G (Qld) [2007] 2 Qd R 363; [2006] QCA 462, Holmes JA, with whom Jones and Mullins JJ agreed, described the statutory scheme at paragraphs [4] and [5] as follows:

"[4] The regime for the payment of the compensation for criminally-inflicted personal injury is to be found in part 3 of the Criminal Offence Victims Act 1995."

"It establishes a scheme for payment of compensation for, among other things, injuries suffered by the applicant 'caused by a personal offence committed against the applicant'.  Where someone is convicted on indictment for such an offence, or it is taken into account on sentence, the applicant may seek an order 'that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence' and the court may then make a compensation order 'for an amount to be paid by the convicted person to the applicant because of the injury'."

"[5] As to what is to be taken into account in determining compensation, section 25(7) provides as follows:

'In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury.'"

"Nowhere in part 3 is there any more precise indication of how compensation is to be assessed when factors other than offences resulting in conviction, or taken into account on sentence, contribute to the applicant’s injury."

This is relevant in the present case because factors other than the offence resulting in the conviction of the respondent for the assault on the applicant, which occasioned him bodily harm and which is the basis of this application, have contributed to the applicant's injury.

This is because the applicant was already vulnerable at the time the offence was committed.  He had the pre-existing condition of cervical dystonic tremor, which had manifested itself 31 years before this assault.  Therefore, what the applicant has suffered is that he has been made worse than he originally was or would have been (absent other traumatic events in his life).

These symptoms prior to this incident were rated by the applicant as 10 out of a scale of 100.  They are now rated by him as at least 80 out of a scale of 100.  This supports the proposition that the assault has significantly exacerbated the symptoms.  As indicated, Dr Sandstrom opines that the applicant's current problems relate primarily to the assault.

As was held in SAY v. AZ at [20], the first issue which the Court has to decide under section 25(7) is whether taking all relevant factors into account, the offence of assault occasioning bodily harm has materially contributed to the injury identified by Dr Sandstrom and which I find is within item 11 of the compensation table because it relates to a fractured skull (brain damage - severe). 

On the basis of the applicant's evidence and Dr Sandstrom's opinion, I find that the respondent's conduct of assaulting the applicant materially contributed to this injury and is a proper subject for compensation.  As indicated, the incident significantly exacerbated his pre-existing tremor condition. 

Once this position is reached, the second issue which arises under section 25(7) is that of the quantification as held in SAY v. AZ at [20], namely:  "What amount should be ordered to be paid for the injury?"

In answering this question, other contributing factors cannot be regarded as irrelevant.  As further stated in SAY v. AZ at paragraphs [22] and [23]: 

"[22] In deciding what amount is payable for a given injury, the Court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded."

"[23] Where there is a single state of injury produced by a number of factors, some or all of which may warrant a reduction in the award, the Court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision."

"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 continuum of offending." 

"Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant's state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences and the relationship of the victim and the offender in which it occurred.  The basis on which any reduction in compensation is made must, of course, be clearly identified."

As observed by Dorney QC DCJ, in Sopinski v. Pike [2010] QDC 72, in SAY v. AZ the Court of Appeal sanctioned a broad-brush approach as often being necessary.  In the present case the question is whether the award of compensation for a single state of injury in the form of a fractured skull (brain damage - severe) should be reduced because of the applicant's pre‑existing symptoms of tremor condition. 

The assessment of compensation must be made in accordance with the approach in R v. Ward; ex parte Dooley [2001] Qd R 464 at 440, that the maximum amount of compensation allowed in respect of each type of injury listed in the compensation table is reserved for the most serious cases.

I find that the injury in this case is a fractured skull (brain damage - severe) within item 11 of the table, as I have already said.  Scaling the amount of compensation within the table, having regard to the contributing factor of the applicant's pre-existing symptoms of cervical dystonic tremor, the significant exacerbation of that condition as described by the applicant and Dr Sandstrom's opinion that the applicant's current problems relate primarily to the assault, I assess the entitlement under this head at 65 per cent of the scheme maximum.  This is an amount of $48,750. 

With reference to the diagnosis of posttraumatic stress disorder and major depressive disorder, which I also find was materially contributed to by the respondent's assault on the applicant, in circumstances in which there was no pre-existing condition of this nature, I also find that these disorders are recognisable psychiatric illnesses or disorders and constitute mental or nervous shock, which is to be compensable under the Act.

This is in accordance with the view of Byrne SJA in RMC v. NAC [2009] QSC 149, that mental or nervous shock within the Act is confined to a recognisable psychiatric illness or disorder.   With particular reference to posttraumatic stress disorder.  In AT v. FG [2004] QCA 295 at [17], Jerrard JA made reference to "establishing the existence of a posttraumatic stress disorder and therefore mental or nervous shock."

As I have indicated, Dr Keen's opinion is that the applicant has experienced moderate to severe symptoms of posttraumatic stress disorder, together with major depressive disorder.  These are combined symptoms of two psychological conditions and he described the posttraumatic stress disorder as chronic.

It is necessary to consider what item of the compensation table applies to the determination of the quantum, which I would order the respondent to pay to the applicant.  In Hill v. Dizo [2010] QDC 71, Dorney QC DCJ adopted the approach that when the Act requires a decision about what item in schedule 1 of the compensation table applies, concern must be directed at what the nature of the "injury" is that was suffered "because" of the offence.

That can only be the injury that is originally suffered, which in turn means that where a later diagnosis is that the severity of the original injury is moderated, that is merely something that is taken into account in assessing, pursuant to the second limb of section 22(4) of the Act, where in the scaling a particular case falls.

There is some lack of clarity on this issue in this case, where the posttraumatic stress disorder is described as moderate to severe.  However, given the chronic nature of the symptoms, the fact that the applicant is suffering from two psychiatric conditions and the beneficial nature of the legislation, I treat the symptoms as being severe at the relevant time. 

It is more likely that symptoms will originally be severe and than moderate.  This is also consistent with the victim impact statement.  Therefore I find that the injury originally suffered as a result of the incident was severe mental or nervous shock within item 33 of the compensation table. 

Therefore I assess compensation for severe mental or nervous shock within that item at 20 per cent of the scheme maximum.  That is at the bottom of the severe range within that item.  I note that this is also the top of item 32 of the table concerning moderate mental or nervous shock.

Further, I conclude that the applicant's actions on or about the 14th of June 2008 have not contributed to either the bodily injury or the mental and nervous shock suffered by him and do not, for this reason, require any further allowance to be made or a lower percentage of compensation to be fixed as a consequence.

Adding the 65 per cent for the bodily injury and the 20 per cent for the mental or nervous shock together, and applying regulation 2 of the Criminal Offence Victims Regulation 1995 (Qld), this results in a total of 85 percent of the scheme maximum, and a total award of $63,750. 

I order the respondent to pay the applicant the sum of $63,750 by way of compensation for the injury suffered by him because of the offence of assault occasioning bodily harm committed by the respondent against his person on or about 14 June 2008, for which the respondent was convicted on his plea of guilty upon being charged on indictment presented at the District Court at Gladstone, and for which he was sentenced on 22 April 2009.