Balmer v Westergren[2010] QDC 262

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   Debian Jade Balmer (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims 1995 (“the Act”) for alleged injury she sustained arising out of the criminal conduct of Anouk Henrietta Westergren (“the respondent”) who was convicted by the District Court at Brisbane on 29 February 2008 for the offence of assault occasioning bodily harm whilst armed to the applicant on 15 February 2005 at Woodford, Queensland.

2. [2]
   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 with exhibits sworn and filed in this court on 22 October 2009;

2. (b)
   the affidavit with exhibit of Trudy Leivesley, clinical psychologist, sworn 13 July 2009 and filed 6 October 2009;

3. (c)
   the affidavit with exhibit of Gregory Gillett, orthopaedic surgeon sworn 16 March 2010 and filed 19 March 2010;

4. (d)
   the affidavit of service of Robert Hodge, licensed commercial agent sworn 6 November 2009 and filed 13 April 2010. 

5. (e)
   the affidavit of Sarah Anderson, solicitor, sworn 1 June 2010 and filed 15 June 2010;

6. (f)
   the two further affidavits of Sarah Anderson with exhibits sworn 22 June 2010 and filed by leave 23 June 2010.

3. [3]
   The respondent was served personally with the application and supporting affidavits but made no appearance at the hearing on 23 June 2010 and the hearing proceeded in her absence.

Background facts:

4. [4]
   On 15 February 2005 the applicant was injured after the respondent drove to the applicant’s residence armed with a baseball bat. There, the respondent attacked the applicant with the baseball bat raining numerous blows upon her.

Applicant’s injuries:

5. [5]
   The applicant claims compensation for both physical and psychological injuries suffered by her arising out of the respondent’s criminal conduct, such injuries being described in the applicant’s written Outline of Argument in the following terms:^[1]

1. (a)
   “six fractures to the left cheekbone;

2. (b)
   severing of facial nerve;

3. (c)
   two broken fingers on left hand requiring surgery;

4. (d)
   broken nose involving minor displacement of the anterior wall and floor of the left sinus;

5. (e)
   lacerations to cheek;

6. (f)
   tearing of the rotator cuff muscle in the left shoulder (although it cannot be certain that this injury fully relates to the assault);

7. (g)
   bruising and swelling to the face, left shoulder, legs, nose and fingers including gross swelling in the left side of the face;

8. (h)
   post traumatic stress disorder (chronic) in conjunction with a major depressive episode.”

Physical Injuries

6. [6]
   In Exhibit DJB (1) to her affidavit filed 22 October 2009, the applicant herself describes her injuries in the following terms:

“28.  I received six fractures to my left cheek bone and a nerve has been severed which has left my left cheek numb.  My nose was broken and I got two lacerations on my cheek.  I got two broken fingers on my left hand, the little finger and the ring finger.  I had to get four stitches in my little finger.  My legs were all bruised and swollen.”

7. [7]
   Exhibits “SEA 1, 2 and 3” to the affidavit of Sarah Elizabeth Anderson^[2] being three medical reports from Drs Dunusinghe (28 April 2005), Moore (2 June 2005) and Hawthorne (13 December 2005) contain the following information respectively:-

 (a)   From Dr Dunusinghe:

“I attended the above at the Caboolture Hospital on 16/02/2005 at 0045 hrs. The following injuries were documented:

1. Gross swelling in left side of face corresponding to maxillary area. 1cm superficial laceration, causing skin to be broken. The swelling involved parietal area. There was subconjunctival haemorrhage. CT scan revealed a minimally displaced fracture in the anterior wall and floor of the left maxillary sinus.

2. There was swelling in the left little finger distal phalanx nail was nearly avulsed. X-ray revealed a nearly comminuted and angulated fracture of distal phalanx.

3. X-ray of left 4th (ring) finger revealed a undisplaced fracture in distal phalanx.

4. Multiple bruised were noted on both lumbar limbs.

Her wounds were cleaned and dressed.  She was treated with antibiotics and analgesics.  As both the fracture of fingers and maxillary sinus were related to subspecialties, she was referred to the Orthopaedic Unit of the Redcliffe Hospital and Maxillofacial Unit at Royal Brisbane Hospital.”

2. (b)
   From Dr Moore:

“I attended the above at the Redcliffe Hospital on 17/02/05 in the afternoon. She had sustained left sided facial bruising, which CT scan demonstrated minimally displaced fractures of the anterior wall and floor of the left maxillary sinus. She had also sustained compound fractures of the left ring and little finger terminal phalanges.

The left little finger required surgical intervention, with washout repair of the nail bed on 18/02/2005. Her facial fractures were referred to the Royal Brisbane Hospital for further follow up.

Her fingers were followed up in the Orthopaedic Outpatients Department, which states that she had a 5 degree fixed flection deformity of the little finger and an otherwise normal range of motion, when she was discharged from the clinic. Untreated, her finger injuries would result in nail deformity and possibly infection of the bone, which would require further surgery and possibly amputation. Fortunately this has not happened.

With regards to her facial fractures; they were minimally displaced and I suspect they would be treated conservatively at the Royal Brisbane Hospital and you would have to contact them regarding this.

The injuries sustained are consistent with a baseball bat injury.  These injuries would have caused moderate pain and discomfort at the time and therefore would be consistent with bodily harm.”

3. (c)
   From Dr Hawthorne:

“I reviewed the above patient on 22 February 2005 at the Royal Brisbane Hospital. This was following her referral from Caboolture Hospital. The following injuries were documented:

1. Swollen, bruised left eye.
2. Small laceration over left superior brow.
3. Subconjunctival ecchymosis.
4. Swelling to left cheek region.
5. Bruising on the left anterior neck region.
6. Slight deviation of the nasal tip.

The patient was assessed in Outpatients with review of her CT scans and the following fractures were noted:

1. Fracture of the left zygomatic complex.
2. Fracture of the nasal bones.

These were all deemed to be minimally displaced and the bone aligned in a bilaterally symmetrical position.  It was elected to adopt a conservative course of management and the patient was reviewed again on 19 April 2005 for follow up of her facial fractures and it was noted that she had normal facial nerve functioning, some scarring associated with her left infraorbital region and complete healing of her facial fractures.  She was advised at that time to see her local dental officer for repair of her teeth and was subsequently discharged from clinic.

The above injuries are consistent with a blow or several blows to the facial region using moderate force and this would be consistent with being kicked and/or punched to the facial region. These injuries would have resulted in moderate pain and discomfort at the site and have resulted in facial scarring. This is consistent with bodily harm.”

8. [8]
   There is also contained within the medical and hospital records exhibited to the applicant’s affidavit a “CT facial bones” report dated 16 February 2005 from Dr Nicholas Bryant of the Caboolture Hospital which states:

“There is extensive soft tissue swelling overlying the left side of the face and forehead. There is extensive opacification seen in the left maxillary sinus with a small air-fluid level. There is some mucosal thickening also noted. There is a minimally displaced fracture through the anterior wall of the left maxillary sinus at the junction of the nasal bone. There is a mild irregularity of the medial wall of the sinus but this appears intact. There is a small fracture through the floor, medially with no significant displacement. The orbital rim is intact, in particular the floor of the left orbit. There is no abnormality of the extra-occular muscles in the orbit.

There are locules of gas within the soft tissue swelling and also seen lateral to the left orbit in keeping with the sinus fractures. There is mild mucosal thickening seen in the right maxillary sinus and also in both frontal sinuses suggesting a background of inflammatory sinusitis. Extensive opacification is seen in the ethmoids, particularly on the left. This probably represents a mixture of blood and mucosal thickening. There is mild thickening in the ethmoids on the right.

The zygomatic arches are intact and no skull fracture is seen.

IMPRESSION:

There are minimally displaced fractures of the anterior wall and floor of the left maxillary sinus.  There is no orbital rim fracture and no entrapment is seen.  There is extensive opacification which likely relates to a degree of blood but also mucosal thickening is seen elsewhere and there is likely a background of sinusitis.  Sinusitis is seen in the right maxillary and frontal sinuses as well as the ethmoids.”

9. [9]
   As set out in paragraph [2] above the applicant also relies upon a number of affidavits to which are exhibited reports from several specialist medical practitioners and others who have respectively examined her for the purposes of this application.

10. [10]
    With respect to the applicant’s physical injuries, Dr Gillett, orthopaedic surgeon, states in his report of 16 November 2009 the following:

 (a) He examined the applicant on that day, that is four years nine months post  index assault;

 (b) Her “current symptoms” were described in the following terms: 

“She has dominant issues psychologically as well as in relation to the facial injuries. From the point of view of the musculo skeletal system, she has problems associated with both lower limbs at the site of previous injuries.  She states that the both lower limbs were targeted by the assailants as they (k)new she had weak legs.  The legs seem somewhat worse, particularly the right side and she can only walk in shoes now. 

With regards to her left shoulder recently it got worse and she now has  limited movement and increasing pain and discomfort.  The ultra sound suggests that the tear is bigger.  Lying on it is an issue and particularly painful with use.  In relation to the left hand, the ring finger has recovered but the little finger has a shooting pain and she cannot fully flex it. It seems to be deformed.  There is tip tenderness.”

       (c)  The applicant’s “Past History” is described as:

“She had a motor vehicle accident many years ago where she had injuries to both legs treated at the Gosford Hospital.  On the right side there seemed to be crush injury to the calcaneus requiring what appears to be a subtalar fusion and on the left side the tibial fracture was treated with intramedullary nail.

She also suffers from grand marl (sic) epilepsy and seizures.  The left hand has not been injured in the past and she had no troubles with left shoulder in the past.”

11. [11]
    Dr Gillett’s opinion is set out in the following terms:

“The nature of the orthopaedic injuries sustained by your client relates to multiple soft tissue injuries and fracture involving the terminal phalanx of the ring and little finger of left hand.

With regards to the symptomatology and problems she describes at present involving the right and left lower limb, these are unrelated to the accident and reflect previous injury and particularly related to the subtalar and what appears to be calcaneal ankle injury on the right side.  These in my view have not been affected by the accident.  There is no clear documentation based on the contemporaneous medical records or photographs that these were injured to a significant degree.

From an orthopaedic perspective, she also has symptomatology associated with the left shoulder girdle.  There is evidence of bruising in the region of left shoulder and also the episode post accident (refer to file review) where she was assaulted by Jeff involving the left upper limb.  She advised there has been ultra sound done of recent times and in the past.  Specific questioning should be made to the General Practitioner regarding the ultra sounds and the assessment of the condition.  I think on the balance of probabilities at this time the diagnosis is left rotator cuff pathology causing impairment but whether this fully relates to the assault or not is difficult to define based on the overall history and the episode of the hand-behind-her back episode after the accident (refer to section file review).

The observed and dominant injury associated with the accident of orthopaedic nature is residual symptoms to the left little finger.”

12. [12]
    Dr Gillett further stated:

“From an orthopaedic perspective the finger will cause some discomfort with gripping tasks.  The limitations of orthopaedic perspective in relation to recreational and domestic pursuits reflect the lower limb which are not related to the accident.  Shoulder girdle limitation may be related to this accident or may not be as stated above.”

13. [13]
    Ultimately it was Dr Gillett’s opinion that:

“… Her current impairment regarding her left hand and this is due to the accident is a 10 percent impairment of little finger function with reference to Table 16-21 which equates to a 1 percent impairment of hand function or 1 percent impairment of upper extremity function or 1 percent loss of whole-person function.”

14. [14]
    With respect to the applicant’s facial injuries and her current condition and complaints in respect thereof, reference is made to Exhibit “SEA 7” to the affidavit of Sarah Elizabeth Anderson filed by leave on 23 June 2010, which is the report dated 22 February 2010 from Dr Andrew MacMillan, Oral and Maxillo Facial surgeon.

15. [15]
    Dr MacMillan describes the applicant’s “current complaint” in the following terms:

“The patient complains of ‘weeping’ left eye, difficulty breathing through her left nostril following a past history of being hit by a baseball bat in 2005.”

Dr MacMillan also reports upon the “clinical examination” he performed of the applicant in the following terms:

●“Left infraorbital anaesthesia

●Left infraorbital scarring

●Nasal bridge scarring

●Decreased left nasal passage air intake consistent with a blow to the left side of the face

●Decreased left upper eyelid movement

●Loose lower denture.”

It is to be noted that this examination and report is five years post index-assault.

“Mental or nervous shock” claim:

16. [16]
    With the applicant’s “mental or nervous shock” condition the clinical psychologist Ms Leivesley’s report of 6 July 2009 who examined the applicant on 9 June 2009 (four years four months post index-assault) includes the following information:

●The applicant said “since about age 8 she has suffered from epilepsy”;

●“She said prior to the assault the epilepsy was “pretty stable” and she had only “a random attack only every 7 or 8 months”;

●The applicant has had a number of “life stressors” described by Ms Leivesley in the following terms:

○“Ms Balmer said when young she was sexually and physically abused by her step father”;

○“She said whilst aware of the abuse her mother insisted that she not report the abuse (and) threatened that if she did report the abuse she would be put in a home”;

○“She said that as a result of this situation she left home at about age 13 and lived in shared accommodation with friends”;

○“She said at about 18½ she married in order to get out of home”;

○“She said the marriage was not long lasting as her husband was a heavy drinker and abusive”.

17. [17]
    Ms Leivesley also reported that the applicant “said prior to the assault she coped with life stressors without assistance … she had not been prescribed anti depressants or medication to assist in dealing with anxiety”. The applicant further said “prior to the assault she had frequently been depressed. However she commented ‘she wouldn’t let it get on top of her’”.

18. [18]
    It is further reported that the applicant advised the psychologist that:

●“About one or two years after the assault she attended a community psychiatric clinic on the advice of her general practitioner”. 

●“She said she attended a couple of times a week during which time she was prescribed medication – advised she was suffering from post traumatic stress disorder – ceased medication as she considered it was only masking the situation”. 

19. [19]
    Ultimately, Ms Leivesley provides her opinion of the applicant’s psychological condition which includes the following^[3]:

“Based on subjective impressions formed during interview, on information provided by Ms Balmer, and on results of formal assessment I am of the opinion that :

16.3(a)  i Ms Balmer’s responses to formal questions pertaining to personal adjustment were interpreted with caution, as they were more than usually negative.

ii However Ms Balmer’s responses were consistent with information she provided during interview.

(b) Ms Balmer’s responses to formal questions were consistent with her experiencing significantly elevated:–

– depressive symptomatology, including at least transient suicidal ideation;

– anxiety including anxiety relating to traumatic stress;

– difficulties of attention and concentration;

– sensitivity to the attitudes and actions around her;

– emotional lability and lack of personal identity direction;

– health concerns;

(c)  i Ms Balmer’s responses to specific questions pertaining to post traumatic stress were also more than usually negative and therefore interpreted with caution.

ii  However once again the responses she gave were consistent with information provided during interview.

iii  Ms Balmer was indicated to be experiencing post traumatic symptoms that:-

– fall within the severe range;

– have a significant impact upon her all areas of her life.

16.4 (a) Given the symptoms reported by Ms Balmer and the cautious interpretation of her responses to formal questions pertaining to personal adjustment, I consider she meets the DSM-IV TR Criteria for Posttraumatic Stress Disorder (Chronic) in conjunction with a Major Depressive Episode.

…

(c) i With regards Schedule 1 of the Criminal Offence Victims Act, 1995, I consider the impact of the assault and its sequelae upon Ms Balmer has caused her “Mental or Nervous Shock” which falls at the lower end of the severe range.”

What is “mental or nervous shock”?

20. [20]
    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’ submissions

21. [21]
    It is submitted on the applicant’s behalf that she should be awarded compensation under the Act in the aggregate amount of $68,250 as set out in paragraph 18 of the applicant’s written Outline of Argument namely:

Causation:

22. [22]
    The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensable injury arising out of those offences has been the subject of much judicial consideration both in respect of applications under the Criminal Code 1899 (Qld) (“the Code”) and under the Act which repealed Chapter 65A of the Code.  The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been more recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462^[4] by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants where other factors are relevant to and impact upon the causation of the alleged injuries.

23. [23]
    Further to this, her Honour’s comments at paragraph [21] and [22] of the judgment are also apposite to the instant case in respect of the principle to be applied, namely:^[5]

“The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order.  Only those injuries to which the relevant offence has materially contributed will be compensable.  If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done.  In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.”

Findings on categories of injuries:

24. [24]
    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 both 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%”

In respect of this item I also include the bruising which the applicant suffered in or around “the left anterior neck region” and the left shoulder which is supported by the medical evidence contained in Dr Hawthorne’s report of 13 December 2005 and Dr Gillett’s report of 16 November 2009 wherein reference is made to “bruising” in those respective areas. 

I am not satisfied on the balance of probabilities that the applicant sustained an injury which would entitle her to compensation under Item 13 of the Compensation Table under Schedule 1 of the Act namely “Fracture/loss of use of shoulder … 8%-23%” as I find that there is insufficient and/or inadequate evidence before the court to support such a finding for the following reasons: 

1. (i)
   The applicant herself did not refer to any shoulder injury per se in her initial statement of complaint to the Queensland Police Service on 14 May 2005.
2. (ii)
   There is no reference to any left shoulder injury in any of the medical reports from the medical practitioners who attended upon the applicant within a short time of the index assault.
3. (iii)
   Dr Gillett refers to a subsequent “episode of 6/7/2005 recorded by the general practitioner of assault grabbing her left arm to hold her arm in arm lock.  There (sic) was by a person called Jeff.  There were obvious marks associated with the left upper limb and maxilla and oval shaped haematoma over the medial upper arm biceps area.  Range of motion of the shoulder is full with pain”.^[6] 
4. (iv)
   Dr Gillett is equivocal at best in respect of the applicant’s current “shoulder girdle limitation” as set out in various parts of his “Opinion” section of his report referred to above. 

For these reasons I am not satisfied on the balance of probabilities that the applicant sustained other than a “bruising” type injury to her shoulder from the index-assault for which the relevant item under which she is entitled to receive compensation is Item 2 of the Table in addition to the other bruising and lacerations she suffered as evidenced by the medical evidence and photographic evidence before the court.  I therefore assess the applicant’s compensation in respect of this item in the sum of $3,750.00 representing 5 per cent of the scheme maximum payable under Schedule 1 of the Act.

2. (b)
   Item 4 – “Fractured nose (displacement/surgery) … 8%-20%”

With respect to the applicant’s facial fractures “including her nose and left zygomatic complex” all of the medical evidence is that “These were all deemed to be minimally displaced and the bone aligned in a bilaterally symmetrical position”.  Further “It was elected to adopt a conservative course of management and the patient was reviewed again on 19 April 2005 for follow up of her facial features and it was noted that she had normal facial nerve functioning some scarring associated with her left intra orbital region and complete healing of her facial fractures”.^[7]

In respect of this item I therefore assess the applicant’s compensation in the sum of $6,000.00 representing 8 per cent of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the whole of the medical evidence before the court. 

  (c)   Item 6 “Facial Fracture (Minor) … 8%-14%”

I assess the applicant’s compensation in respect of this item again in the sum of $6,000.00 representing 8% of the scheme maximum payable under Schedule 1 of the Act based upon the whole of the medical evidence before the court including the evidence contained in exhibits “SEA 2-3-4” to Sarah Anderson’s affidavit together with the Hospital and Medical records and the further report of Dr Andrew McMillan dated 22 February 2010.

 (d)   Item 17 – “Fracture/Loss of Use of Finger …. 2%-8%”

I assess the applicant’s compensation in respect of this item in the sum of $3,000.00 representing 4% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical and photographic evidence before the court particularly the medical evidence contained in Dr Gillett’s report where he was of the opinion that “the observed and dominant injury associated with the accident of orthopaedic nature is residual symptoms to the left little finger”.  He equated the applicant’s “impairment of little finger function” at “10%”.

 (e)   Item 27 – “Facial Disfigurement or Bodily Scarring (Minor/Moderate)…. 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 whole of the medical evidence before the court including the evidence of Dr MacMillan in his “Clinical examination” of the applicant on 22 February 2010 referred to in his report.

 (f)   Item 33 – “Mental or Nervous Shock (Severe) … 20%-34%”

I assess the applicant’s compensation in respect of this item in the sum of $15,000.00 representing 20% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the detailed evidence of the Clinical Psychologist Ms Leivesley referred to in her report of 6 July 2009.  I find on the balance of probabilities that the index-assault “materially contributed” to the applicant’s current condition of post traumatic stress disorder but that she was a person with psychiatric difficulties for sometime pre-dating the index-assault as evidenced by the medical and hospital records before the court, particularly the report dated 12 March 2004 from the Redcliffe-Caboolture Health Service District Mental Health Services;^[8] the medical notes from Dr Robert Ng of 14 February 2004 and the applicant’s dysfunctional family background including sexual and physical abuse as documented by Ms Leivesley. I find that these factors would have impacted upon the applicant’s current condition in any event independently of the effects of the index-assault. On all the evidence on point I am therefore satisfied that the applicant is adequately compensated under this item by an award of the above sum.

Applicant’s Direct Contribution to Injury:

25. [25]
    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).

26. [26]
    I refer to the circumstances of the index assault and set out in paragraph [4] above and I am satisfied that the applicant did not either directly or indirectly contribute to the injuries she sustained at the hands of the respondent.

Order:

27. [27]
    I order that the respondent pays to the applicant the sum of $41,250.00 by way of compensation for the injuries she sustained on 15 February 2005 caused by the respondent.

28. [28]
    In accordance with s 31 of the Act I make no order as to costs.