Raymond v Porter[2010] QDC 116

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  This is an application for criminal compensation under section 24 of the Criminal Offence Victims Act 1995 [Qld] [the Act], for injuries sustained because of the offence of grievous bodily harm to the applicant on 1 April 2006 at Gayndah, of which the respondent was convicted by his plea of guilty on indictment on 15 June 2007.

In relation to this offence he was sentenced by Botting DCJ to be imprisoned for a period of 30 months with his parole release date fixed at 29 February 2008.  The originating application was personally served on the respondent on 16 December 2009.  There was no appearance by the respondent at this hearing.  In the circumstances, I proceed in his absence.

Section 24 of the Act provides for compensation in respect of conviction on indictment of a personal offence, for an injury suffered by an applicant because of that offence:  JMR obo SRR v. Hornsby [2009] QDC 147 at [6].  A personal offence is an indictable offence committed against the person of someone: section 21 of the Act.  And injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in schedule 1 of the Act, or prescribed under a regulation: section 20 of the Act.

Under section 25(8)(a) an award of criminal compensation does not invoke the principles applicable to common law damages. As stated in section 22(3) it is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled.  A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000: see section 25(2) of the Act and section 2 of the Criminal Offence Victims Regulation 1995 [Qld] and Riddle v. Coffey (2002) 133 A Crim R 220; [2002] QCA 337 at [12].

Having regard to section 25(3)-(4) an award for compensation must be made by reference to the compensation table which lists 36 different types of injury giving each a percentage, or range of percentages, of the scheme maximum.  If the injury does not come within those itemised in the compensation table, or specified under a regulation, then the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table: section 25(6).  Section 22(4) of the Act requires compensation under that section to be calculated by assessing the injury as, or similar to, an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table: Riddle v. Coffey at [15], applying R v. Ward; ex parte Dooley [2001] 2 Qd R 436, at 438, 440.

It follows that in such cases, the amounts of compensation ordered are to be scaled within the ranges set out in that table, on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases: Ward at 440.

Section 26 of the Act, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication: Riddle v. Coffey at [18]; JMR obo SRR v. Hornsby [2009] QDC 147 at [6].  However, it does not discourage a Judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising out of one episode, by reference to the relevant items in the compensation table, in the manner required by section 25(3) of the Act, and Ward; Riddle v. Coffey at [18].

Accordingly, where it is practical to make separate assessments under each applicable item in the table, whilst, at the same time, avoiding duplication, that course should be adopted: Wren v. Gaulai [2008] QCA 148 at [24].

However, if an injury that is best described in one item of the compensation table is, instead, assessed together with another injury, under another item, in order to avoid duplication, it may therefore be necessary to make an adjustment to cater for the differences between the ranges or the maximum for each item: Wren at [29].

Ultimately, the Court should ensure there is compliance with the use of methodology prescribed by section 25, which is mandatory: Wren at [22], see also, JMR obo SRR v. Hornsby at [6].

Section 25(7) of the Act provides that 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 by the applicant that directly or indirectly contributed to the injury.

In determining the factual basis for this application, I am assisted by the affidavit of the applicant, which attaches his police statements, the transcript of the sentencing proceedings before Botting DCJ, and his Honour's sentencing remarks.

The respondent's assault on the applicant, which resulted in the grievous bodily harm, occurred at a hotel where they were both patrons, however, the respondent had been asked to leave prior to the incident.  During the evening, the applicant had met another patron, who said he had been involved in an altercation with the respondent, and that he was afraid that the respondent would try to get him if he tried to leave.  It was with this knowledge that the applicant saw the respondent at about 12.30 a.m., when he was at the front entrance, to get a breath of fresh air.  What happened from that point is best described in the applicant's own words from his police statement:

"He came from outside the pub.  It was almost like he was running into the pub.  I said to him:  'Mate, you're barred.  You're not fucking welcome in this pub.'  He said:  'There's no-one in the fucking pub that can bar me.'  I said:  'Don't you under-fucking-stand you're not welcome?'  I was starting to burr up.  There was already one bloke inside who was too scared to come out.  I started to burr up at him just verbally.  We would have been standing fairly close, face-to-face.  I didn't hit him or do or say anything to suggest that's what I was going to do.  I might have pushed him, I don't remember.  There was no-one else out in the foyer.  I didn't see anyone with Porter, either.  I don't know exactly how long the heated discussion went on for, but it would've been about 10 seconds or 15 seconds.  There was a fair bit of swearing.  He said something like:  'I don't give a fuck about anyone here.'  I think he took a good step backwards, towards the door, and next thing, I remember a fist in my face.  I didn't have my hands up.  I wasn't touching him.  I remember the fist, a right hand.  I remember someone yelling:  'Oi.'  It was a woman's voice.  Then I woke up, on the ground, face-down.  I don't remember hitting the floor or anything else.  I believe he must have knocked me out with his punch alone.  I remember feeling pins and needles down my right arm.  I started to move a little bit, and got a really bad shot of pain down my neck, and I knew I was in trouble."

The assault and its surrounding circumstances was witnessed by the singer of the band which had been playing at the hotel.  The singer's account of events was recounted to Botting DCJ by the prosecution in the following terms:

"She witnessed an exchange of abuse, and stated that both parties were pushing and shoving each other, and that, then she saw the prisoner throw a single punch at the complainant, causing him to fall backwards, and to the ground."

The respondent's counsel said that it was her instructions that the applicant pushed the respondent before the single blow was struck.  She described it as an excessive response to an element of provocation.

His Honour sentenced on the basis that the respondent had punched the applicant once.  He described the circumstances neutrally as:

"The complainant remonstrated with you, and you punched him once.  He fell backwards, and has sustained a very significant injury to his neck - a fracture the right facet of C6/C7.  As a result of that, the complainant has suffered in many, many ways, and I am quite satisfied of that.  He was, himself, virtually a prisoner in a brace for three months."

His Honour also observed that, "Clearly, the incident that occurred that night, and his subsequent injuries, have had, in many ways, a devastating impact on his life."  That was a reference to the injuries suffered by the applicant.

In these circumstances, I find, consistently with the singer's observation, that immediately prior to the punch being thrown by the respondent, the applicant had pushed him, and this led to their pushing and shoving each other, up to the time of the blow, which was struck by the respondent, and which caused the grievous bodily harm.

The applicant deposes that as a result of the assault, he suffered a slight split on the inside left side of his mouth, a bruised and swollen left jaw, a black left eye and a fracture to the C6/C7 vertebrae.

I am satisfied, on the balance of probabilities, that the applicant suffered injuries as a result of the indictable offence of grievous bodily harm committed by the respondent against his person on 1 April 2006.  The offence of serious assault on the respondent was a personal offence, and therefore, section 24(1) of the Act is satisfied.

I am satisfied that the applicant suffered injuries that were serious as a result of the respondent's conduct towards him on this occasion.  I am satisfied that those injuries involved a slight split on the inside left of his mouth, a bruised and swollen left jaw, a black eye, the C6/C7 vertebrae fracture, and mental or nervous shock.

Item 1 - bruising/laceration etc (minor/moderate) one per cent - three per cent

I consider that the injury inside the applicant's mouth, his bruised and swollen jaw and black eye involved a bruising/laceration within item 1 of the table.  Having regard to the requirement to scale the amount of compensation within the ranges set out in the table, on the basis that the maximum amount of compensation allowed in respect of each injury listed in the table is reserved for the most serious cases, while noting that the submission on behalf of the applicant is that I award three per cent, I assess that it is one per cent (out of a maximum of three per cent).  This is an amount of $750.

Item 23 - neck/back/chest injury (severe) eight per cent - 40 per cent

It is submitted that I would assess this injury as falling within the severe category of a neck injury, and assess it at the higher end of the range for the following reasons:

• That the applicant was required to be fitted with a HALO vest to immobilise movement and assist in recovery.

• That the HALO vest was required to be worn for three months, during which time the applicant required considerable assistance with basic living and hygiene tasks.

• The applicant was required to be an inpatient at the Princess Alexandra Hospital for approximately one week following the assault.

• The injury has resulted in the applicant being unable to work due to the nature of the injury, and ongoing pain issues.

In relation to that submission, I note that the applicant deposes that he felt immediate pain in his neck after waking up following the strike by the respondent.  He was transferred via ambulance to Gayndah Hospital, and later transferred to the Bundaberg Hospital, and then the Princess Alexandra Hospital, where he remained for five days.

As submitted, the applicant was fitted with a HALO vest, which is depicted in photographs which are exhibited to the applicant's affidavit.  He was in this brace for three months, during which time he required assistance with basic personal care, such as bathing and dressing.

The applicant also suffered pins and needles in his arm, pain in his neck and numbness.  These have been treated pharmacologically.  He also had physiotherapy following the assault.  The symptoms lasted many months following the assault, and included the applicant seeking further medical assistance due to concerns with the ongoing nature of the symptoms, when he presented at the Princess Alexandra Hospital Emergency Department on 23 August 2006, after experiencing sudden pain in his neck.

In November 2006, he was seen by Dr Droulers, who reported, on 20 September 2007, that clinically, the applicant suffered from generalised (4-5/week) headaches, and intermittent bilateral paresthesis of his arms, which is sometimes relieved by simple analgesia.  These symptoms were reasonably consistent during the time that he had been seen by the doctor.

Dr Droulers concluded by observing that the applicant appeared to have made a reasonably satisfactory recovery from his physical injuries, but was still suffering a significant psychological trauma relating to the assault.  This is a matter to which I will return.

I note that according to Ms Page's medico-legal report of 3 August 2009, when she saw the applicant, he reported he was experiencing ongoing pain to the neck.

The applicant has not worked since the assault.  The Centrelink job capacity assessment reports demonstrate his limited capacity to work as a result of his medical condition.  For example, it is stated, on document M21, to Ms O'Gorman's affidavit, filed on the 14th of January 2010, that it is expected that the applicant would have difficulty maintaining an 8-14 hour work capacity without vocational interventions, but could probably manage in a suitable position within the next 24 months.

At page M19 of the attachments to that affidavit, the assessment summary includes that the applicant has medical conditions that are significantly impacting on his functional capacity, and he is given a current work capacity of 0-7 hours per week until 5/3/08, and a future work capacity of 8-14 hours per week.

It is observed that he will need retraining/reskilling and ongoing assistance and support to return to a suitable position in the open labour market.  As noted, he has not returned to work since the assault.

In these circumstances, I agree that the neck injury is severe, but having regard to the requirement to scale the amount of compensation within the very broad range set out in the compensation table, I am not satisfied that this is the most serious case of this type of injury, as was submitted on behalf of the applicant.  I assess that it is 35 per cent (out of the maximum of 40 per cent), that is, $26,250.

Item 33 - mental or nervous shock (severe) 20 per cent - 34 per cent

The application is on the basis of a posttraumatic stress disorder which was still present on 3 August 2009, when Ms Page's psychological medico-legal report was prepared.

The applicant deposes, in paragraph 15 of his affidavit:

"Following the assault, I had difficulty sleeping.  I would also have bad dreams of the assault.  I find it difficult to go out amongst people, as I am concerned that something similar may happen again.  My wife and I separated, and I feel that the assault was one of the main factors that caused this separation."

As I have already noted, Dr Droulers concluded his report of 20 September 2007 by stating that while the applicant appeared to have made a reasonably satisfactory recovery from his physical injuries, he was still suffering significant psychological trauma relating to the assault.

Initially, the applicant saw Dr Arnoldus-Lewis for these problems.  She states, in her 27 October 2007 report, that the applicant presented at her rooms on 6 June 2007, following a referral from Dr Droulers for treatment of his psychological injuries arising from the incident of 1 April 2006.

She notes that the applicant only attended two sessions, although he visited her home once prior to his initial appointment, and she saw him almost daily throughout June, and most of July, as he was living in his family home, adjacent to her clinic.

She describes the applicant as being in an extremely depressed mood when she met him just prior to commencing therapy at her clinic.  She saw him on an almost daily basis on her way to work, and he remained extremely depressed throughout the approximately two months of her association with him.

She says that he seemed to be without any direction or motivation, often recovering from alcohol overuse.  He told her that prior to his injuries on 1 April 2006, he only drank socially, but since the incident, he was drinking heavily most days to cope with the pain and depression.  He also said that he had experienced financial difficulties since 1 April 2006.  He also disclosed, on numerous occasions, that life was not worth living, and that he had seriously contemplated suicide to end what he described as "his miserable existence".

Her report describes that he revealed a diverse range of traumatic injuries, which are set out at page 2.  Her opinion was that these indicated a diagnosis of severe chronic posttraumatic stress disorder and associated disorders, in accordance with Diagnostic and Statistical Manual of Mental Disorders (4th Ed.) Text Revised (DSM-IV-TR).

She also stated that the applicant's psychological injuries were compounded by the irreconcilable breakdown of his marriage, and related hostilities after his injuries.  She said that he was totally obsessed and confused with the destructive attitudes and behaviours of his wife towards him, including "robbing" him to the point of financial destitution, and revealing that their adult son was not his biological child.

Ms Page's report concludes that the applicant meets the criteria for the diagnosis of posttraumatic stress disorder, as defined by the DSM-IV-TR, and is also experiencing extreme levels of disturbance in the form of depression, anxiety and stress.  Her prognosis for the future is guarded.

She describes a number of incidents in addition to the assault that may have contributed to this.  These are set out under the heading "Subsequent difficulties as reported by Mr Raymond", at pages 5-6.

These are references to behaviour which has brought him negatively to the attention of the police, and on at least one occasion, as best I can interpret, may have resulted in him being charged with a criminal offence by them, and referred to a Mental Health Unit.  The report is lacking in detail about this.  There is also reference to an incident where he took an axe to his foot.

Significantly, the applicant told her:  "That everything changed after the assault.  He feels he is a different person, and his personality has also changed - his moods are uncontrollable."

Under the heading of "Summary of assessment results", commencing at page 11 of the report, she states:  "His wife of 25 years left him six months after the assault, as a consequence of changes in him, directly attributable to the assault."

She also states:  "Mr Raymond continues to report and to exhibit distress in relation to the assault.  He has experienced changes in his self-concept, and significant disruptions in his personal, social and occupational areas of functioning.  He reports ongoing pain in his neck, attempts to avoid intrusive and distressing thoughts of the assault, irritability, poor concentration and hypervigilance in the conduct of ordinary daily activities.  He has developed serious self-harming behaviours, and has contemplated suicide.  His horror in response to threats to his personal integrity, in concert with his helplessness at being unable to defend himself, has contributed to his experience as a traumatic one.  He has reported significant alcohol abuse in an effort to deal with his symptoms (it should be noted that he has since reduced his alcohol intake, and he endeavours to maintain two days per week alcohol free), and reports that, to his knowledge, neither he nor his family has had counselling since the assault.  His symptoms remain three years after the assault."

Further, she states, at page 12:  "The combination of problems that are reported suggest that treatment is likely to be difficult, with numerous character and environmental obstacles to a smooth treatment process."

Under the heading "Opinion, prognosis and treatment recommendations", she states:  "Mr Raymond has experienced several incidents in addition to the assault that may have contributed to his psychological illness, however, his history suggests that until the assault in 2006, he had demonstrated substantial ability to adjust to difficulties that beset him at physical, psychological, social and vocational levels.  It appears to be the changes in his behaviours subsequent to this event that have placed him in the risky situations that have occurred since, and have led to his difficulties with the law.  His symptoms may have been exacerbated somewhat by these incidents.

In my opinion, his current injuries (although possibly intensified by more recent negative experiences), are secondary to the assault occasioned on him on 1st April 2006."

Her report concludes by recommending that the applicant be afforded the opportunity to participate in a therapeutic process that may address his symptoms and difficulties.  While she recognises that a final number is difficult to determine, she considers that a reasonable recommendation, at this stage, is 20-30 sessions with a psychologist over a two year period, with six-monthly reviews to evaluate his progress.

She states that the current fee for psychological services, as recommended by the Australian Psychological Society, is $200 per hour.

In these circumstances, it is submitted that the applicant has suffered severe mental or nervous shock within item 33 of the compensation table, and a claim of 22 per cent is made under this item, that is, for $16,500.

The submission fairly accepts that alcohol misuse has occurred subsequent to the assault.  In these circumstances, it is submitted that this factor is a part of the applicant's psychological condition, and it is accepted that the Court must make appropriate allowances in determining the appropriate award.

Further, it is said that the breakdown of the applicant's marriage and some subsequent legal problems that have been identified must also be factored into the appropriate award.  However, it is argued that even taking into account these factors, the applicant's psychological disorder should be assessed as falling within the severe category of mental or nervous shock, but, an award at the lower end of the appropriate range should be made, taking into account all of the circumstances, and the symptoms experienced by the applicant.

In RMC v. NAC [2009] QSC 149, Byrne SJA preferred the view of Lee J in R v. Tiltman; ex parte Dawe [1995] QSC 345, to that of Thomas JA in Ferguson v. Kazakoff [2001] 2 Qd R 320; [2000] QSC 156, and held that nervous shock, within the Act, is confined to a recognisable psychiatric illness or disorder.  In AT v. FG [2004] QCA 293, Jerrard JA made reference to:  "Establishing the existence of posttraumatic stress disorder, and therefore, of mental or nervous shock."

In these circumstances, I accept the opinion of Ms Page, as supported by Dr Arnoldus-Lewis, and proceeding on the basis of Tiltman and RMC v. NAC, that for the purposes of item 33 of the table, there must be a recognisable psychiatric illness or disorder, I find that the applicant's posttraumatic stress disorder is compensable as mental or nervous shock within the meaning of those words in the Act; and having regard to that opinion, I am satisfied that the respondent's conduct constituting the offence of grievous bodily harm was the material cause of that disorder, and is a proper subject for compensation.

Having regard to the psychiatric opinion I consider that this injury is properly to be placed within item 33, as involving severe mental or nervous shock.  I also consider, particularly having regard to the medico-legal report of Ms Page, and the earlier report by Dr Arnoldus-Lewis, that the proper assessment of the entitlement under this head is at 25 per cent (out of a maximum 34 per cent).  This is the amount of $18,750.

Despite the fairly made concessions on behalf of the applicant, I do not consider that the effects of the applicant's subsequent alcohol misuse, marriage breakdown and the consequences which followed from it, or subsequent legal problems, are required to be factored into this award.  This is because I consider that these consequences are an integral aspect of the symptoms of the posttraumatic stress disorder, rather than being independent factors which have contributed directly or indirectly to this injury for the purposes of section 25(7) of the Act.

As the applicant has stated, everything changed after the assault, he feels a different person, and his personality has also changed, and as stated by Ms Page, his wife left him as a consequence of changes in him directly attributable to the assault.

Further, as she states, his significant alcohol abuse has occurred in an effort to deal with his symptoms, and it appears to be the changes in his behaviour subsequent to that event that have placed him in the risky situations which have occurred since, and have led to his difficulties with the law.

Section 25(7) of the Act - contribution

However, I find that the applicant's actions have contributed to his bodily injuries, and his mental or nervous shock in another way.  That is through his gratuitous pushing of the respondent, which precipitated the respondent's excessive response, resulting in the grievous bodily harm and the consequent injuries.

The applicant was not a security employee of the hotel or a police officer attempting to maintain order by virtue of his lawful authority.  He had no right, entitlement or authority to act towards the respondent in a manner which constituted an assault, no matter how minor.  On the other hand, nothing that he did warranted the respondent's excessive and brutal overreaction.

In these circumstances, I reduce the total amount that I would otherwise award by four per cent, because I consider allowance must be made for his contribution to this extent, resulting in a lower percentage of compensation.

Conclusion and order

I assess compensation as follows:

1. (a)
   For the minor bruising laceration in item 1 of the compensation table - at one per cent of the scheme maximum ($750).

2. (b)
   For severe neck injury within item 23 of the compensation table - at 35 per cent of the scheme maximum ($26,250).

3. (c)
   For severe mental or nervous shock within item 33 of the compensation table - at 25 per cent of the scheme maximum ($18,750).

This results in a total percentage of 61 per cent of the scheme maximum, and therefore, a total amount of $45,750.  I reduce this amount by four per cent for the applicant's actions which have contributed to his injuries ($1,830).

I therefore order the respondent to pay the applicant the sum of $43,920 by way of compensation for the injuries suffered by him, because of the offence of grievous bodily harm committed by the respondent against his person on 1 April 2006, for which the respondent was convicted on his plea of guilty, upon being charged, on indictment, on 15 June 2007, and in respect of which he was sentenced on that date.

Those are the orders of the Court.