Michael v Christiansen[2010] QDC 157

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”).  The Act has now been repealed, but the application was filed on 29 January 2010 and so is to be dealt with under the Act.^[1]  The respondent on 19 February 2009 was sentenced for offences including relevantly assault occasioning bodily harm in company committed on the applicant on 10 June 2007.^[2]  On that occasion the respondent and a co-offender^[3] came upon the applicant outside a fast food restaurant, punched him and knocked him to the ground and apparently knocked him out and repeatedly kicked him.  The applicant was subsequently taken to the Logan Hospital, and has no recollection of the assault; he recalls going to the fast food shop, and then waking up in the hospital.  Once he recovered himself he became concerned about where he was and discharged himself and returned home.^[4]  He took two days off work but apparently continued to work thereafter.^[5]

Physical injuries

2. [2]
   Subsequently he attended a general practitioner, Dr Torbey, who provided a report to his solicitors on 9 October 2009.^[6]  That records that the applicant presented on 19 June 2007 complaining of headaches and back pain.  On examination there were healing abrasions to the forehead and left shoulder, his back showed a good range of movement with some pain and tenderness to palpation of the spinous processes of the lower back and the paraspinal muscles.  On 10 July 2007 he returned with a lump near the left eyebrow which Dr Torbey thought was a haematoma.  His back pain had somewhat settled.  X-rays taken two days later reported no bony injury to the skull but found a spondylolisthesis at the L5-S1 level of the back, said to be a not uncommon incidental finding at a lower level than the main area of pain.

3. [3]
   Dr Torbey said he had not seen the applicant again until 12 February 2009 when he was still complaining of mid to lower back pain and emotional effects on his life.  On 4 March 2009 he was referred to a psychiatrist, but I have no report from the psychiatrist, nor did Dr Torbey disclose the psychiatrist’s opinion.  The applicant underwent a CT scan which suggested that the lower back pain was due to disk injury and the doctor prescribed medication for this.  The applicant saw him again on 25 September 2009, with the same symptoms.  He was continuing to work as a labourer although this caused discomfort to his back, and complained of disturbed sleep, flashbacks, and a feeling of being anxious and nervous around people.  Dr Torbey said in his report that he “felt he probably was suffering with post traumatic stress disorder”, prescribed medication for anxiety as well as for back pain and arranged for a review by the psychiatrist.  The applicant was to return beyond the date on which the report was provided.  I do not have a follow up report.

4. [4]
   Further information about the extent of the physical injuries appears in a series of photographs which were taken by the police soon after the incident.^[7]  These show extensive abrasions and lacerations to the face particularly above the left eye, abrasions on the left arm and right arm and a fairly large abrasion on the left shoulder, and some smaller marks on the applicant’s back which are indeed somewhat difficult to see.  Overall the abrasions appear to be widespread and significant, particularly in view of the seriousness of the abrasions to the face.

5. [5]
   The applicant’s victim impact statement,^[8] dated 19 August 2008, referred to a physical scar on his forehead which was a constant reminder of the event, but it was not referred to in Dr Torbey’s report or in the report of Dr McGuire, to which I shall come shortly, and there is no recent photograph of the material.  The applicant in his affidavit says that he continues to have a lump above his left eye from the attack:  para 12.  In the circumstances therefore, it is difficult to make any clear assessment of the extent of any continuing adverse effect of the injury in terms of scarring.

6. [6]
   An injury which is otherwise within a different item in the Schedule can produce an award under Item 27, but it is not uncommon for a court to deal with such a situation by taking into account the scarring in assessing the amount allowable under the other item and not making a separate award for scarring.^[9]  On this basis and taking the scar into account and bearing in mind the extent of the abrasions, an allowance should be made under Item 2 of 4%.  On the other hand, I will not allow any additional sum under Item 27 as sought on behalf of the applicant.

7. [7]
   The applicant in an affidavit sworn 28 January 2010 deposes to the back injury having caused him significant pain ever since the assault, for which he is taking daily medication.  The back pain causes him significant discomfort at work; he worked as a labourer prior to the incident, and it seems he is continuing in that work.  The applicant is 38, so pain for the rest of his life will be for a long time.

8. [8]
   The medical evidence in relation to the back injury is unsatisfactory; Dr Torbey’s report suggests that the continuing pain is attributable specifically to some injury suffered in the assault, but does not say so particularly clearly, nor does he indicate whether the pre-existing condition has contributed to the continuation of the symptoms, or their severity.  Nevertheless, I accept that the applicant suffered a back injury as a result of the attack upon him, and that this has caused him pain in his back which is continuing to an extent that he requires medication and that interferes with his work as a labourer, though not to the extent of making him unable to undertake that work.  In the circumstances I think that this ought to be categorised as more than a minor example of a back injury but in the absence of more detailed medical evidence the best I can do is place it somewhere within Item 22, and I will allow 8% under that item.

Mental or nervous shock

9. [9]
   Apart from the physical injuries, the applicant deposes to having suffered nightmares and flashbacks of what he saw on the security footage shown to him by the police.^[10]  He says that since the incident he does not trust anyone, he rarely goes out at night and avoids going out by himself, has withdrawn from his family, becomes angry easily, and is suspicious of others.  The applicant’s father has said that after the incident the applicant does not visit them, and they have to visit the applicant where they find that he is very withdrawn, and has a short temper, which is different from his behaviour prior to the incident.^[11]

10. [10]
    The applicant was seen by a psychiatrist, Dr McGuire, on 7 December 2009 for the purposes of a report to his solicitors.^[12]  Dr McGuire noted that the Logan Hospital notes revealed that the applicant became agitated and discharged himself before a CT scan on his head could be undertaken.  The complaints made to Dr McGuire were that he was depressed, hypervigilant, cannot trust people, had difficulty socialising and is nervous in public, his sleep was adversely affected and he has nightmares, although he denied flashbacks.  He complained of feeling paranoid.  Dr McGuire had difficulty obtaining a history, particularly in relation to an occasion in 2003 when the applicant had apparently been attacked and kicked at a hotel.  She described great difficulty in extracting information, and was not able to obtain information about current events.  He complained that his general practitioner was not taking his complaints of back pain seriously enough.  He said that he did not like the psychiatrist whom he had seen on one occasion.  Dr McGuire reported that he became angry and uncooperative at times during the interview.

11. [11]
    Ultimately Dr McGuire said that the history she obtained did not make it possible to diagnose a psychiatric disorder as a result of the assault.  She described his demeanour as very odd, and commented that she doubted whether he was giving an accurate history, and that which he gave was too sparse to be considered reliable.  She noted that he had received antidepressants, and expressed the view that it was possible that these may be of assistance to him.  She noted that his irritability had preceded the assault, although that appears to be inconsistent with the evidence before me, particularly from the applicant’s father.

12. [12]
    In these circumstances there is the difficulty that there is an absence of any diagnosis from Dr McGuire of any identifiable psychiatric disorder.  Dr Torbey’s report contains a diagnosis, perhaps a tentative one, of post traumatic stress disorder, but the fact that Dr McGuire did not confirm this diagnosis must cast doubt upon whether the applicant was suffering from post traumatic stress disorder at the time he saw Dr McGuire.

Authorities

13. [13]
    In these circumstances it is difficult to make a finding that the applicant is suffering from a recognisable psychiatric illness or disorder. Counsel for the applicant, however, relied on the decision of Thomas JA in Ferguson v Kazakoff [2001] 2 QdR 320, also a decision under the Act.  In that matter his Honour said at [17]:

“Clearly, the ordinary usage of the term [nervous shock] has been to describe situations of injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event.”

14. [14]
    His Honour said at [19] that it would unduly limit the scope of the term “mental or nervous shock” if it were confined to conditions that were recognised as psychiatric disorders, though it would be going too far to use it as a basis for compensation for natural human emotions felt by people who could cope adequately with the aftermath of an offence and get on with their lives.  At [21] his Honour said:

“It is extremely difficult to define the point at which mental consequences to a claimant from a crime become compensable as ‘mental or nervous shock’.  I consider, however, that if nothing more is shown than fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions, the claimant has not shown that he or she has suffered nervous shock.  Unless the court is affirmatively satisfied that mental or nervous shock has been suffered compensation should not be awarded for such reactions.”

15. [15]
    That decision has subsequently frequently been relied on or applied.^[13]  Recently, however, Byrne SJA declined to follow it, and held that “nervous shock” in the Act is confined to a recognisable psychiatric illness or disorder:  RMC v NAC [2009] QSC 149 at [38].  His Honour’s analysis is with respect persuasive, and I would certainly follow it if I considered that I were at liberty to do so.  However, in my opinion the approach in Ferguson v Kazakoff has been endorsed by the Court of Appeal, in MR v Webb [2001] QCA 113.  This decision was not referred to by Byrne SJA in his reasons, and was presumably not cited to him.^[14]

16. [16]
    In MR v Webb Wilson J, with whom the other members of the court agreed, said at [16] that the applicant appealed against an award of compensation as inadequate, on the principal basis that the judge at first instance “erred in awarding compensation under the heading ‘mental or nervous shock’ rather than the heading ‘totality of adverse impacts of sexual offence’. …  I am not persuaded that the appellant was denied compensation for elements of her emotional condition because the primary judge adopted the mental or nervous shock rubric. … Professor Nurcombe identified an emotional disturbance, which was not mental or nervous shock in the sense of a diagnosed psychiatric illness.  However, the courts have not interpreted mental or nervous shock in the compensation table as requiring such a diagnosed psychiatric illness; indeed in the days before the introduction of the Criminal Offence Victims Amendment Regulation (No.1) 1997 (Qld), awards were regularly made under that head for emotional disturbance falling short of such a diagnosis.”

17. [17]
    Her Honour then went on to consider the question of whether the award of compensation was manifestly inadequate, by reference to other decisions. Ultimately her Honour concluded at [19]:

“It has not been shown that there were aspects of her condition for which she was denied compensation.  While the award was low, it was not so low as to be manifestly inadequate.”

18. [18]
    In that matter there was no diagnosis of psychiatric illness or disorder, but the judge at first instance had assessed compensation on the basis that the applicant had suffered mental or nervous shock. This was directly challenged on appeal on the basis that the judge at first instance had erred in doing so, and that argument was rejected, specifically on the ground that mental or nervous shock in the compensation table was not confined to a diagnosed psychiatric illness. In order to succeed in the appeal, it was necessary for the appellant to show that there had been some error in the exercise of the discretion, either by showing some specific error in the approach of the judge, or by showing that the final result of the exercise was manifestly inadequate. Had the court considered that there was an error of law in making an assessment under the mental or nervous shock item in the absence of a diagnosed psychiatric illness, it would have been unnecessary to consider whether the award was manifestly inadequate, as herHonour did.  It seems to me therefore that in this decision the Court of Appeal specifically rejected the argument which Byrne SJA has endorsed, and that the decision therefore stands as Court of Appeal authority to the contrary.

19. [19]
    I am of course bound by a decision of the Court of Appeal. In my opinion, that Court has ruled that mental or nervous shock in the schedule to the Act is not confined to a recognised psychiatric illness or disorder.^[15]  The decision to the contrary in RMC v NAC (supra) was in my opinion per incuriam.  It follows that the absence of evidence of a diagnosable psychiatric disorder is not an impediment to my making an award under the heading of mental or nervous shock.

Analysis

20. [20]
    In the present case, the evidence does not support a finding that the applicant is suffering from any diagnosable psychiatric disorder. But it does support a finding that his psychiatric state is different from what it was before the assault. There have been changes in his behaviour and his personality, and this suggests quite strongly that what he has experienced was more than a normal human reaction or emotion following a stressful event. There is also the consideration that he has been referred for psychiatric assessment by a general practitioner, and has been prescribed antidepressants. On the whole of the evidence I find that the applicant did suffer mental or nervous shock for the purpose of the schedule to the Act.

21. [21]
    In circumstances where there is unfortunately no useful guidance in the medical evidence as to the severity of the applicant’s condition, or the extent to which his mental state differs from that prior to the assault, I consider that it is appropriate to make an assessment only within Item 31 in the schedule.  In all the circumstances, I will allow 5% under that item.

22. [22]
    This produces a total of 17%. There is nothing in the material I have seen to suggest that the applicant contributed in any way to any of the injuries that he suffered, nor that the assessment should be reduced on any other basis. When applied to the scheme maximum, this percentage produces a figure of $12,750.

23. [23]
    I therefore order the respondent to pay to the applicant $12,750 compensation for the injuries suffered by the applicant as a result of the offence involving the applicant for which the respondent was sentenced in this court on 19February 2009.  There is no jurisdiction to make any order in respect of costs.