Petersen v Broanda[2010] QDC 295

[2010] QDC 295

DISTRICT COURT

CIVIL JURISDICTION

JUDGE JONES

No 6 of 2009

BUNDABERG

DATE 24/06/2010

ORDER

HIS HONOUR:  This is an application for compensation under the Criminal Offences Victim Act 1995. The application arises out of injuries sustained by the applicant as a consequence of an assault by the respondent on 27 November 2005.

The respondent pleaded guilty to a number of offences, including the assault on the applicant, in this Court on 20 February 2006. By reference to the remarks of the sentencing Judge the circumstances of the offence were that the assault occurred after the applicant had made arrangements with the respondent to purchase a motorbike, although there was some suggestion that it was, in fact to purchase marijuana. Whichever, during the course of that purchase the respondent struck the applicant in the face causing significant facial injuries. The hit has been described here by Mr Fairlie, acting for the applicant, as a king hit.

Turning then to the impact of the assault on the applicant. At the time he was 48 years of age. By reference to his affidavit he says that the injuries he has suffered caused him not only the physical injuries to which I'll refer in the moment, but have also caused him to be extremely self-conscious about his facial appearance due to repressed cheek bone and smile. He says that he has bad dreams and flashbacks of the assault. Finds it difficult to trust people. Has sleep disruption. Feelings of guilt and self-blame. Finds it difficult to cope with social gatherings as he has a continual fear of being assaulted. He is also concerned that there might be retribution upon him by either the respondent and/or associates of the respondent.

In addition to the affidavit of the applicant I also have been provided with a number of medical reports, which has been supplemented by oral testimony of the applicant here today.

Firstly, there's a report of a Dr Matthew Hawthorne dated 10 January 2006. In that report it is identified that the applicant suffered bruising, facial abrasions. Also suffered pins and needles, blurred vision and a fracture to the right zygomatic complex, which is, I understand it, a bone just above the jaw line. In that report it was noted that the applicant was left with scarring and that it was likely that the diplopia, which occurred, was unlikely to be able to be corrected by surgery.

There is another medical report, largely consistent with the report of Dr Hawthorne, being that of Dr Chiteraga, dated 16 January 2006.

Initially I was concerned that the injuries may not have been as severe as first thought. A radiological report of a Dr Lu, a radiologist in training, at least on the face of it, indicated that no fracture lines were visible. However, I have heard evidence from the applicant, to the effect, that after being admitted to the Bundaberg Hospital for a period of one day, it was decided that he should be transferred to Brisbane. At Brisbane he underwent a surgical procedure, which required him to remain overnight. Whilst the applicant was unable to give the technical name to the surgery it was clear that it involved some manipulation and, if not, restructuring then realignment of the jaw and/or cheek area.

In addition to those reports to which I've referred, the applicant also attended at the rooms of a psychologist, Desley Fraser. It is relevantly recorded in her report, 27 April 2009, that the applicant displayed no physical discomfort, but he described his mood as being morose, detached and laid back. It is also reported that his affect was flat and that he appeared to be under the influence of a drug and/or alcohol throughout the interview. It is said that throughout the interview the applicant proved to be a poor historian with frequent conflicting information, despite being drawn out by the writer to clarify. He denied any suicidal ideation.

Ms Fraser also went on to note that whilst at the time he appeared to be oriented in person, time and place he seemed to be suffering significant difficulties in ordering events chronologically and attention and concentration was impaired.

Under the heading "Diagnostic Formulation" Ms Fraser reports, "Mr Petersen was a 51 year old man who presented with a longstanding degenerative disorder of his spine. Further, his symptoms would indicate ongoing distress in relation to the assault and robbery, however, it was difficult to tease out the full impact due to the presentation as already described.

Mr Petersen was unable to describe a significant impact of the assault on his ongoing presentation as each time the writer encouraged him to give more information he seemed to be unable to describe any symptomology, apart from variable sleep pattern and worry about the perpetrator entering his yard or encountering the perpetrator in the street. He was unable to further clarify what the concern specifically was in relation to these events. Therefore, it was considered Mr Petersen was experiencing an exacerbation of a pre-existing condition demonstrated by mild increase of anxiety symptoms.". Under the heading "Prognosis" it is said that prognosis was good.

Pursuant to section 22(4) of the Criminal Offences Victims Act the maximum amount of compensation provided for under the Act is reserved for the most serious of cases. The amounts provided for in other cases are intended to be scaled according to there level of seriousness.

The scheme of the Act and its associated regulations is that in respect of the classification of injuries identified certain percentages are to be applied to the scheme maximum of $75,000, which is prescribed under section 2 of the regulations.

Having regard to the medical reports it was agreed by Mr Fairlie that the injuries suffered by the applicant, resulting from the assault, could fall under the following categories, "bruising and lacerations, et cetera. Mental or nervous shock, and facial fractures or facial disfigurement".

In respect to the bruising and laceration injuries, schedule 1 of COVA provides for a percentage range of one to five per cent for this form of injury, the range of one to three per cent for minor moderate injury, and the range of three to five per cent for more severe levels of this type of injury. Mr Fairlie agreed with my view that this classification of injury suffered by the applicant could fairly be described at being at the minor end.

In all the circumstances on the material before me I consider an allowance of two per cent to be reasonable for this injury.

Turning then to the question of mental and nervous shock. The percentage range for this form of injury is two to 10 per cent minor, 10 per cent to 20 per cent moderate, and 20 per cent to 34 per cent for severe injuries. What constitutes mental and nervous shock is not defined in the Act and there has been differences expressed about what would constitute mental or nervous shock for the purposes of the Act.

In the case of R.M.C. and N.A.C. his Honour Justice Byrne SJA considered that nervous shock, for the purposes of the Act, should be confined to recognisable psychiatric illness or disorder. However, wider interpretations of that phrase have been adopted on a number of occasions, for example, by her Honour Justice Atkinson when sitting on the Court of Appeal in the case of J.I. v A.V (2001) QCA 510 at paragraph 59, where her Honour specifically referred to the decision of Justice Thomas as he then was, in Ferguson and Kazakoff 2001, 2 Queensland Reports at 320.

In that case his Honour Justice Thomas considered that mental or nervous shock, wasn't limited to diagnosable psychiatric illness. But it had to be more than mere fear, fright, unpleasant memories or anger towards the offender. Perhaps most significantly in the case of M.R. and Webb 2001 QCA 113, Justice Wilson, with other members of the Court of Appeal, considered that the Courts have not interpreted mental or nervous shock, under the Act, as requiring a diagnosed psychiatric illness and went on to say that the Courts regularly made awards under this heading for emotional disturbance falling short of such a diagnosis. It would appear that Justice Byrne may not have been referred to the decision of M.R. and Webb.

In this Court, the wider approach has been adopted by Judge McGill in Mitchell and Christensen 2010 QDC 157. I've referred to these cases because, in my opinion, it has not been proved that the applicant suffers from any diagnosed psychiatric illness. It is reported that there are indications of ongoing distress resulting from the assault and that the applicant has experienced an exacerbation of a pre-existing condition demonstrated by a mild increase in anxiety symptoms.

While not amounting to a diagnosable psychiatric illness these symptoms do seem to me to go beyond the more contemporaneous emotions of fear and fright and are more then unpleasant memories or anger.

However, in my opinion, the report of Ms Fraser indicates that this level of injury is minor, if not very minor, and there is good prognosis. It was submitted, on behalf of the applicant, that this injury might have been more severe then first thought, having regard to certain behavioural aspects of the applicant. In my opinion, the more persuasive evidence is the medical evidence.

Accordingly, I consider that the appropriate allowance under this heading is three per cent.

Turning then to the more serious facial injuries. It is apparent that the injuries were significant, but do not fall in the severe end of the scale. Accordingly, I intend to adopt the moderate range for this injury. Taking into account the ongoing facial disfigurement and to bring that into account, I propose to adopt a figure at the higher end of the moderate range for this injury and will adopt a rate of 17 and a-half per cent.

Finally, pursuant to section 25(7) of the Act I am required to decide, in determining the amount of compensation, whether there is any behaviour on the part of the applicant that has directly or indirectly contributed to the injury. In the sentencing remarks there is reference to the applicant being on an expedition to purchase drugs rather than a motorcycle when the assault occurred. This would not be inconsistent with the applicant's own statements about drug use. Being involved in an illegal activity at the time of the assault may have been a contributing factor by reason of the inherent dangers of such an activity. But here there is no proof that a drug deal was involved at the time and the applicant, in his affidavit, deposes to the fact that when the assault occurred he was meeting the respondent to purchase a motorcycle. Accordingly, there is no justification to discount the compensation determined by me.

Accordingly, compensation is determined in the amount of $16,875 for the reasons given made up as follows:

• Bruising and Lacerations at 2%;$ 1,500.00
• Mental or Nervous Shock at 3%;$ 2,250.00
• Facial Injuries at 17.5%;$13,125.00

I reserve the right to tidy up the decision, but I think the reasons I've given are apparent from what I've said.

MR FAIRLIE:  Oh, they're quite apparent, your Honour, and‑‑‑‑‑

HIS HONOUR:  All right.

MR FAIRLIE:  ‑‑‑‑‑you know, I don't disagree with your Honour.

HIS HONOUR:  All right.

MR FAIRLIE:  And the - you've given - you've given Mr Petersen and myself a fair hearing this afternoon, your Honour.