Beckingham v Radenic[2010] QDC 142

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   Stephen Barry Beckingham (“the applicant”) claims compensation under Part 3 of the Criminal Offences Victims Act 1995 (“the Act”) for alleged bodily injury he sustained arising out of the criminal conduct of Dale Cameron Radenic (“the respondent”) who was convicted by this court on 20 October 2006 at Southport for the offence of robbery whilst armed with a dangerous weapon, namely a handgun and using other personal violence to the applicant on 10 November 2005 at Gold Coast, Queensland.

2. [2]
   The application for compensation is made pursuant to s 24 of the Act and is supported by relevant material and affidavits on file together with the oral submissions made to this court at the hearing of the application.

Background facts:

3. [3]
   The offence occurred on 10 November 2005 when the applicant was walking along a path and heard footsteps running from behind him. He turned around and saw the respondent wearing dark clothing and a hooded jumper holding a handgun in his right hand. The respondent directed the handgun at the applicant’s face and proceeded to grab the applicant around the scruff of the neck. He applied the handgun to the applicant’s left check in a forceful manner. The respondent was screaming at the applicant words to the effect “give me your wallet, money, everything”. The applicant stated he had nothing but his mobile phone and the respondent shouted words to the effect of “I’ll do it” which the applicant interpreted as the respondent would shoot him. The respondent then alighted with the applicant’s phone and the applicant gave chase for a short while, whilst trying to attract attention from passing motorists.

4. [4]
   The respondent was served with the application for compensation and supporting affidavits on 20 September 2009 but made no appearance at the hearing on 19 October 2009.

Applicant’s injury:

5. [5]
   The applicant claims compensation for post-traumatic stress disorder arising out of the incident and relies upon the report of Mr Craig Holt, Consulting Psychologist, exhibited to his affidavit and the facts and opinions therein contained to support his claim. The applicant attended on Mr Holt on “22 March, 30 March, 12 April, 11 May, 8 June, 29 June and 17 August 2007”.^[1]

6. [6]
   The applicant sought treatment from Dr Diana Hamilton Psychiatrist and was referred to Mr Holt by his general practitioner Dr Bromberg “for treatment of Post-Traumatic Stress Disorder”.

7. [7]
   The applicant reported to Mr Holt the following symptoms:^[2]

“

• Hyperarousal
• Hypervigilance
• Severe sleep disturbance
• Recurrent nightmares
• Emotional liability and reactivity
• Increased startle reflex
• Loss of trust
• Episodes of anger and rage.”

Mr Holt stated that the applicant “During assessment and treatment remained symptomatic.”

8. [8]
   Mr Holt further reported on 15 March 2009 in the following terms:

• The applicant “was traumatised by the incident and remained traumatised with symptoms listed above. He struggled to manage his mood (which was reactive). He expressed severe fear regarding the prospect of being assaulted and held up again.”
• “Mr Beckingham’s prognosis was guarded. He was continuing to experience high levels of suspiciousness, hypervigilance and extreme startle response. He was struggling to manage his rage at times.”
• As at August 2007 “I considered his prognosis for full recovery to be poor.”
• Under the heading “Degree of Psychological Impact” and applicant’s “symptoms at initial presentation were severe. During treatment his symptoms varied between moderate and severe. I am unable to comment on his current functioning”.
• “Mr Beckingham may require further psychological and psychiatric treatment if his symptoms have not subsided.”

9. [9]
   In his report of 6 April 2009 Mr Holt states:

• “Mr Beckingham’s presentation and symptomatology met the criteria for a diagnostic formulation using Diagnostic & Statistical Manual of Mental Disorders, Fourth Edition, Text Revision (DSM-IV-TR) of Post traumatic Stress Disorder (chronic) (DSM-IV-TR-309.81).
• Specifically, Mr Beckingham experienced a traumatic event – his life was threatened. His response involved intense fear and terror, and feelings of helplessness. The traumatic event was persistently re-experienced with recurrent and intrusive recollections, flashbacks, recurrent nightmares, reliving experiences (as if the experience was happening again), and intense reactions to cues that reminded Mr Beckingham of the trauma.” 

10. [10]
    The applicant states in his affidavit filed 9 September 2009 that “the assault has had an ongoing affect upon me in that I still suffer from symptoms such as hyperarousal, hypervigilance, severe sleep disturbance, I startle easily, loss of trust, loss of confidence and I have episodes of anger and rage. This has lead to me taking antidepressants and I feel anxious almost like I am walking on egg shells. I suffer recurrent nightmares where I am almost reliving the experience making it very difficult to stop thinking about what has happened to me.”

What is “mental or nervous shock”?

11. [11]
    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 submissions:

12. [12]
    It is submitted on the applicant’s behalf that his injury falls within “Injury number 32/33” of the Compensation Table in Schedule 1 of the Act, i.e. “ Mental or nervous shock (moderate) or (severe)” and that “the appropriate award of compensation would range between 20% to 25% of the Scheme maximum”.^[3]

Findings on categories of injury:

13. [13]
    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 respondent for the psychological injury he suffered caused by the respondent and that such injury falls within Item 32 of the Compensation Table in Schedule 1 of the Act.

14. [14]
    I assess the applicant’s compensation in respect of this Item in the sum of $15,000.00 representing 20% of the Scheme Maximum based upon the applicant’s own evidence and the evidence of the Psychologist, Mr Holt who confirms the applicant’s diagnosis of “Post Traumatic Stress Disorder” which had persisted for 18 months when he first examined the applicant. He then described the applicant’s “symptoms at initial presentation were severe” but “During treatment, his symptoms varied between moderate and severe”. While there is no evidence before the court of the applicant receiving more recent professional treatment for his condition, I accept his evidence that he has “ongoing” symptoms which continue to affect him.

Applicant’s direct contribution to injury:

15. [15]
    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 s 25(7) of the Act).

16. [16]
    I refer to the circumstances of the incident as set out in paragraph [3] above and I am satisfied that the applicant did not either directly or indirectly contribute to the injuries he sustained at the hands of the respondents.

Order:

17. [17]
    I order that the respondent pay to the applicant the sum of $15,000.00 by way of compensation for injuries sustained by the applicant and caused by the respondent for which he was convicted by this court on 20 October 2006.

18. [18]
    In accordance with s 31 of the Act I make no order as to costs.