DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The Originating Application in this proceeding was filed on 17 November 2009. It seeks primarily an order that the Respondent pay to the Applicant such sum by way of compensation as may be determined by the District Court for injuries suffered as a result of an offence which led to a conviction of the Respondent on 11 December 2006 upon indictment.

2. [2]
   The application was served on the Respondent by leaving the relevant document with Mr Alan Preston, Correctional Supervisor, at the Woodford Correctional Centre.

3. [3]
   I was concerned when this application came on for hearing on 24 February 2010 as to whether such service was effective given the terms of rule 99 and rule 110 of the Uniform Civil Procedure Rules and ss 90 and following of the Public Trustee Act 1978.  As a result of those concerns the Applicant has caused to be filed by way of supplementary submissions, with an attached letter, information that Mr Preston has been delegated by the officer-in-charge to accept the service of legal process on behalf of prisoners, and that this is a normal part of his duties.  In addition, those submissions contain a copy of an affidavit of Timothy Feely sworn 25 February 2010 stating that the Public Trustee of Queensland has received written confirmation from the Respondent who confirms that he was served with copies of all relevant material and that the Public Trustee had advice in writing that he wished to take no part in the proceeding for criminal compensation.  Since s 30(3) of the Criminal Offence Victims Act 1995 (“the Act”) permits the court, on such an application as this, to receive information “in any form the court considers appropriate”, the court has received the above referred to information and, accordingly, is satisfied that appropriate service has been effected.  In any event, I have recently had drawn to my attention an affidavit filed under the wrong proceeding number, but which should have been on this particular file.  That affidavit filed 23 February 2010 is an affidavit of Terence Joseph O'Connor referring to correspondence written to the Public Trustee of Queensland and to the Respondent. It is entirely consistent with what has just been canvassed.

Legislation

4. [4]
   Although the Criminal Offences Victims Act 1995 (“the Act”) has been repealed by the Victims of Crime Assistance Act 2009, the later Act, through its transitional provisions, and in particular ss 154 and 155, has permitted applications such as this to be brought. 

5. [5]
   In applications such as this, s 24(2) enables an applicant, against whom a personal offence is committed by a person - such as the respondent here - who has been convicted on indictment of a personal offence, to apply to the court before which the person is convicted for an order that the convicted person pay compensation for the injuries suffered because of the offence.

6. [6]
   Since by s 21 a “personal offence” is defined as an indictable offence committed against the person of someone, it is clear from the material filed that the Respondent was convicted, on a guilty plea, on an indictment concerning an offence which occurred in January 2005 and involving the Applicant. With respect to the Respondent, the sentencing judge, O'Sullivan DCJ, stated that, after some prior hitting, the Respondent and another kicked the Applicant to the ground whereby he sustained very serious injuries including fractured ribs, a head injury, lacerations and facial scarring. She also remarked that the Respondent had assaulted the Applicant with a beer bottle from which he suffered further from a collapsed lung, lacerations to the ribs, and two further long lacerations, and has been left with scarring.

7. [7]
   That brief summary satisfies the prerequisites for the court considering whether it should make an order under s 24(3) of the Act for an amount to be paid by the Respondent, as a convicted person, to the Applicant because of the injury (noting that “injury” is defined as including “bodily injury” and “mental and nervous shock”).

Nature of injuries

8. [8]
   Since, unsurprisingly, I am required to take into account the remarks of the sentencing judge, besides those already canvassed, O'Sullivan DCJ stated that the violence which had been used was extreme. When that is added to the Applicant’s Statement of Witness of the investigating police, it becomes abundantly clear that the attack was one which inevitably, and did, lead to serious injuries which are set out in considerable detail in the records of the Royal Brisbane Hospital.  It is necessary to refer to those expressly mentioned in a report under the hand of Dr M McPhillips dated 23 February 2010. It was noted by that practitioner that, having reviewed the hospital notes, and after setting out the numerous injuries suffered, the injury was significant, the pneumothorax was small and did not appear to be life threatening, but that the plural effusion and bubbling wound were probably more significant as they could have caused significant problems if left untreated.  In fact, the opinion was given that if the condition had been left untreated it would almost certainly have deteriorated and under those circumstances could have become life threatening.  With respect to continuing problems, Dr McPhillips noted that the fibrotic lung changes and scarring were almost certainly related to the lung trauma, and, depending on the progression of those changes over time, the fibrosis could have an effect on lung function.

9. [9]
   The Applicant suffered not only physical injuries but also psychiatric injuries. For the purpose of satisfying the definition of “injury” in s 20 of the Act concerning “mental or nervous shock”, I intend to accept the analysis of Byrne SJA in RMC v NAC [2009] QSC 149.  There, he held that “nervous shock” within the meaning of the Act is confined to a recognisable psychiatric illness or disorder at [38].  In this case, Dr John Chalk, consultant psychiatrist, in a report of 18 June 2009 diagnosed an adjustment disorder with subsequent depressed and anxious mood.  His prognosis is that the Applicant has now improved and is left, at best, with residual mild symptoms which do not require any further treatment. The Court thereby is satisfied that a relevant “mental or nervous shock” injury has occurred.

Section 20 and application of Tables in Schedule

10. [10]
    Section 25 of the Act requires that a compensation order may only be an order for the payment to the Applicant of a total amount of not more than the prescribed amount, being termed the “scheme maximum”: see sub-s (2). Importantly, s 22(4) states that the maximum amount of compensation provided is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness.

11. [11]
    The Item in Schedule 1 which appears to me to be the most appropriate to the physical injuries received is Item 26 which covers severe stab wounds and has a range of 15% to 40%.

12. [12]
    Given the Applicant’s description of what he remembers, given the sentencing judge’s remarks, and given all the medial information presented to the court, the appropriate scaling which should occur with respect to Item 26 in this case is 30%.

13. [13]
    A further amount is sought under Item 27 which deals with bodily scarring of a minor to moderate nature, as well as facial disfigurement. The range here is 2% to 10%. There are a number of decisions which suggest that it may not be appropriate to make a separate order under an Item such as Item 27 when scarring inevitably follows from some other physical injury: see for instance the discussion in Saunders v Hindley [2010] QDC 9 at [19].  But, in that case, visually the scarring was quite minor and there was no proper evidence of any significant adverse consequences.  Although there are other cases such as Zaicov v Jones [2001] QCA 442 in which a separate assessment has not been carried out, such cases do make some allowance which is taken into account for such an “omission.” In this case, three photographs were tendered as Exhibit 1.  They show scarring to various parts of the body.  But since the scarring is primarily, although not exclusively, concerned with injuries that were not part of the stabbing that occurred, I intend to make an assessment under Item 27, but limit it to those scars which are not part of the stabbing.  Approaching Item 27 in that way, and noting that the top of the range is 10%, I intend to make an assessment of 5% for additional scarring.  I should also note that with respect to the scarring that is a result of the stab wounds, given the assessment for the wounds at 30%, I believe it is appropriate that that figure takes into account, without any further increase, the relevant stab wounds and their aftermath.

14. [14]
    Finally, regarding the physical injuries, the Applicant has sought an additional sum under Item 1 concerning bruising and lacerations of a minor to moderate nature. Scaling for this is 1% to 3%.

15. [15]
    But again, in order to avoid duplication, any award under this particular Item would primarily reflect the results of the scarring mentioned above, particularly that which did not require stitches. While I intend to make a separate order with respect to it, I find that the lacerations, given the moderate amount allowed for bodily scarring, should dictate a conclusion that the scaling should be in the middle of the range of Item 1, namely, 2%.

16. [16]
    Finally, with respect to the assessed psychiatric condition, while the Applicant has been left with mild residual symptomotology – for which I hold that the definition of “mild” concerning illness or pain is “being not severe” – I am faced with the question of what the Schedule to the Act intends. Where, as here, the original condition has substantially improved, should the court take the Schedule as referring to the original diagnosis and then take the condition as at the hearing as determining where in the range that now falls? I have been referred to Dooley v Ward [2000] QCA 493.  There, the Court of Appeal held that, even though there was a temporary aggravation of a quite serious nature to a pre-existing condition, the injury should have been classified in the “moderate” category:  at [15]. 

17. [17]
    Nevertheless, there are distinguishing features between that case and this. In particular, the Court of Appeal held that the judge at first instance would have been justified in putting the mental or nervous shock in the “severe” category if the mental condition was wholly or substantially due to the assault. What is different here is that there has been no aggravation of a pre-existing condition but rather a separate development of a severe adjustment disorder which, in time, has left only mild residual symptomotology. Therefore, here, the question posed appeals to me as the correct approach to take.

18. [18]
    I am of the view that it is Item 33, which deals with mental or nervous shock of a moderate nature, that is appropriate. The range of that is 10% to 20%. But given the mildness of the final prognosis, it would be at the lowest part of that range that an award should be made, namely, 10%.

19. [19]
    I am disinclined to view the task that I must undertake as necessarily involving an examination of comparable cases. It appears to me that the correct approach is to consider what has been suffered, what the continuing nature of the ongoing condition will be, and, applying all that, conclude what the scaling should be given under Schedule 1. By this, I apply the appropriate assessment in light of what is required, noting, in particular, ss 22 and 25.

Contribution

20. [20]
    Although s 25(7) dictates that the court must have regard to everything relevant including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury, there is nothing in the material presented to me which in any way suggests that there was any contribution by the Applicant in this case. It is most unlikely that the Applicant’s own drunkenness which led to an incapacity to recognise the extent of his own injuries would be caught up by this provision, particularly when it speaks to “contributing” to the “injury”.

Order

21. [21]
    Given that the totality of the percentages when added is 47% and given that regulation 2 of the Criminal Offence Victims Regulation 1995 has the effect that for every percentage determined the prescribed the amount is $750.00, the order that I make here is:

1. That the Respondent pay to the Applicant, as compensation for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the Respondent on 11 December 2006 upon indictment in the District Court of Queensland, the sum of $35,250.00.