Malcolm v Williams[2010] QDC 125

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   Lorraine Malcolm (“the applicant”) claims compensation under Part 3 of the Criminal Offences Victims Act 1995 for injuries she sustained arising out of the criminal conduct of Jenna Selena Williams and Andrea Gail Williams (“the respondents”) who were respectively convicted by this court at Rockhampton on 1 September 2006 and 6 September 2007 for the offence of assault causing bodily harm whilst armed and in company to the applicant on 31 July 2004 at Rockhampton, Queensland.

2. [2]
   Both respondents were respectively served with the application and supporting affidavits, but made no appearance at the hearing on 16 October 2009 at Rockhampton and the hearing proceeded in their absence.

3. [3]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

1. (a)
   the applicant’s affidavit sworn 4 November 2008 with Exhibits; the affidavit of John Flanagan, psychiatrist sworn 26 November 2008 with Exhibit; and the affidavit of Katina Perren, solicitor, sworn 1 December 2008, all filed in this court on 6 January 2009;

2. (b)
   the affidavit of service of Anthony Vernon Longson, Bailiff sworn 12 January 2009 and filed in this court on 28 January 2009;

3. (c)
   the affidavit of service of Vicki Lauanne Vincent sworn 11 August 2009 and filed in this court on 12 August 2009.

Background facts:

4. [4]
   The applicant was born on 17 March 1967 and was the victim of an assault occasioning bodily harm at the hands of both respondents on 31 July 2004 when the respondents were armed with an offensive instrument and were in the company of each other.

5. [5]
   A summary of the circumstances of the incident is that the applicant had consumed alcohol on the day in question at her home and left her home after an argument with her partner. She subsequently met with the two respondents and an argument ensued resulting in both respondents attacking the applicant with “a metal bar” and “brick”. The applicant was struck in the head and sustained lacerations.

Applicant’s injuries:

6. [6]
   The applicant claims compensation for both physical and psychological injury suffered by her arising out of the respondents’ criminal conduct. The applicant’s physical injuries are described in the following terms:

• “4cm laceration to the scalp
• 5cm/2cm/3cm laceration on the scalp
• 1 cm laceration over one eye brow
• 1.5cm laceration over the second eye brow”.^[1]

The Queensland Ambulance Service report^[2] states among other things that the applicant “had been chroming and was unco-operative … would not allow any examination or observations taken…QPS on scene stated PT assaulted with brick. Unknown if patient KO’d … OE patient sustained multiple lacerations to face and frontal region of head. Frontal wound exposing skull.”

 The Rockhampton Hospital emergency department records show that at 8 am the following morning (1/8/2004)^[3]. The applicant “had a good sleep; fully awake now; well alert and orientated; had breakfast well; no complaint; and no headache or vomiting”.

7. [7]
   The applicant also claims a “mental or nervous shock” condition arising out of the assault.

8. [8]
   The evidence filed in support of the applicant’s injuries is firstly, the applicant’s sworn affidavit referred to above to which is exhibited her statement of the complaint to the investigating police officers. In her statement she describes being struck with “a metal object” and then “a brick” resulting in her admission to the Rockhampton Hospital and her receiving “several staples on the top of my head and several stitches on the sides of me head. My head is very sore and causes great pain and discomfort especially when I lay down. The doctors have given me pain killers for the pain.”^[4] 

9. [9]
   In support of the applicant’s “mental or nervous shock” claim the applicant states in her affidavit sworn four years and three months after the index assault that she is “suffering from ongoing psychological effects in relation to the incident”, and refers to Dr Flanagan’s report of 25 January 2008.

10. [10]
    Dr Flanagan’s report of the applicant’s condition in so far as his specialty is concerned (psychiatric and psychological services) includes the following information:

• “4.1 She said that she suffered from headaches and migraine in her head. The headaches occurred now and then. They would come on pretty strong, go away and come back. They occurred every few days. She was unable to distinguish the headaches from the “migraines”. The headaches, she said, had just started last year and she had gone to see a doctor at Bidgidii.^[5]
• 4.2 In the first few weeks after the assault, she had dizziness and headaches, but they stopped and came back last year.
• …
• 4.18 I asked her about her drinking habits. She said that she had cut down a lot since the assault and also that she would get drunk more quickly. She used to drink a carton at a time, about once a fortnight. Now she would get drunk on three tallies. This would happen about once a fortnight and on special occasions. She had cut down last year or the year before.”

11. [11]
    Dr Flanagan provided his diagnosis in the following terms:

“9.5 My provisional diagnostic formulation according to DSM is as follows:

Axis I Adjustment Disorder with Anxiety, Irritability and Interpersonal Intolerance/Avoidance. It is possible that she has Post Traumatic Stress Disorder, but I was unable to elicit sufficient clear symptomatology to confirm this, e.g. she gave no convincing spontaneous account of distressing intrusive recollections. Her present claimed alcohol usage would not qualify for a diagnosis.

In the past it would appear that she has suffered from alcohol abuse. She describes a reduced alcohol tolerance which can be a feature of Post Concussional state, as well as long term heavy drinking.

Axis II No diagnosis.

Axis III She described headaches, dizziness and forgetfulness, due to concentration impairment. Such symptoms are a common manifestation of the Post Concussional Syndrome. However, if this were their origin, one would expect that they would have been continuous since the assault and tending to improvement by this stage. Instead she claims that they are of one years duration. Thus, they may have some other cause, the possibilities being another medical condition including possible secondary malignancy or they may be wholly or partly secondary to her Adjustment Disorder.

Axis IV Assault.

Axis V Level of disturbance is hard to estimate without a collateral history. It seems likely to be in the moderate range.”

Dr Flanagan ultimately stated “the described adjustment disorder is likely to be a direct result of the serious assault”.

12. [12]
    Dr Flanagan further stated:

“13. Prognosis and Treatment

1. At three and a half years her psychiatric condition is chronic and therefore of guarded prognosis. Appropriate medication and culturally informed counselling may be of some benefit. The degree of alcohol usage needs to be ascertained and addressed if necessary.”

What is “mental or nervous shock”?

13. [13]
    The recent decision of RMC v NAC [2009] QSC 149 revisited this question and what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed the legal history of the condition in paragraphs [25] to [37] of his judgment and ultimately came to the conclusion in paragraph [38] thereof that:

“Nervous shock” in the Act is confined to a recognisable psychiatric illness or disorder”

Applicant’s submission:

14. [14]
    It is submitted on the applicant’s behalf that compensation for her injuries both physical and psychological should be assessed in the following terms:

1. (a)
   Item 2 – “bruising/lacerations (severe) … 3%-5%”

 And it is submitted that an assessment of $3,750.00 be made in respect of this Item representing 5% of the Scheme maximum under the Compensation Table in Schedule 1 of the Act;

2. (b)
   Item 32 – “mental or nervous shock (moderate) … 10%-20%”

 And it is submitted that an assessment of $11,250.00 be made in respect of this Item representing 15% of the Scheme maximum under the Compensation Table in Schedule 1 of the Act.

In aggregate the applicant claims an award of compensation in the sum of $15,000.00.

Findings on categories of injuries:

15. [15]
    On the basis of the evidence before me and the submissions made, I find that the applicant is entitled to an award of compensation against the respondents for her physical and psychological injuries, and that such injuries fall within the following categories of injuries contained in the Compensation Table in Schedule 1 of the Act, namely:

1. (a)
   Item 2 – “bruising/laceration, etc (severe) … 3%-5%”

 I assess the applicant’s compensation in respect of this Item in the sum of $3,750.00 representing 5% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical and hospital reports before the court which show that the applicant received a number of moderately severe and painful lacerations to her head as a result of her being struck a number of times with a blunt instrument and brick.

2. (b)
   Item 31 – “mental or nervous shock (minor) … 2%-10%”

 I assess the applicant’s compensation in respect of this Item in the sum of $7,500.00 representing 10% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court from Dr John Flanagan, psychiatrist, wherein he ultimately diagnoses the applicant’s condition as “adjustment disorder with anxiety irritability and inter-personal intolerance/avoidance”, but cannot conclude that the applicant has “post traumatic stress disorder”, (although it is a possibility) because he “was unable to elicit sufficient clear symptomology to confirm this”. Further to this it was reasonably conceded at the hearing that in the light  of Dr Flanagan’s diagnosis, an assessment under Item 31 of the table would be more apposite to the application. In the circumstances, I find that the applicant’s injury in respect of “mental or nervous shock” is in the “minor to moderate” range and the assessment is made accordingly.

Applicant’s direct contribution to injury:

16. [16]
    In deciding the amount of compensation payable to the applicant, I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see 25(7) of the Act).

17. [17]
    I refer to the circumstances of the incident as set out in paragraphs [4] and [5] above and although the applicant approached the respondents in the first instance to confront them about a domestic issue involving all parties, the respondents’ reactions were extreme and out of all proportion to any issue raised by the applicant. I am therefore satisfied in these circumstances that the applicant did not either directly or indirectly contribute to the injuries she sustained at the hands of the respondents.

Does liability attach to both respondents?

18. [18]
    Section 26 of the Act relevantly provides that:

“(5) A single compensation order may be made against more than one convicted person.”

3. (6)
   If a single compensation order is made against more than 1 convicted person, the order may provide for—

1. (a)
   separate liability of a convicted person scaled according to the person’s direct and material contribution to the injury; or

2. (b)
   joint liability of more than 1 convicted person for an amount payable under the order; or

3. (c)
   both the separate liability mentioned in paragraph (a) for an amount and joint liability for the amount.

19. [19]
    In this instance I am satisfied that it is appropriate to make the compensation order against both respondents who participated in the index assault and then it is a question of determining (if possible) the extent to which each of the respondents “directly and materially contributed to injury mentioned in subsection (3)(a) and (b)”,^[6] if there is to be an apportionment of liability between the respondents.

20. [20]
    I am further satisfied on the basis of the material before the court that the “separate liability for each of the convicted persons” should be of equal proportions as there is no evidence before the court which would enable a finding to be made that any one of the respondents “contributed to the (applicant’s) injury” more than the other.

21. [21]
    I find therefore that each respondent is jointly and severally liable for the compensation payable to the applicant caused by their respective criminal conduct.

Order:

22. [22]
    I order that the respondents or either of them pay to the applicant the sum of $11,250.00 by way of compensation for injuries sustained by the applicant and caused by the respondents on 31 July 2004 at Rockhampton.

23. [23]
    In accordance with s 31 of the Act I make no order as to costs.