Read v O'Neill[2010] QDC 31

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN

No 51 of 2009

TOOWOOMBA

DATE 10/02/2010

ORDER

HIS HONOUR:  This is an application for criminal compensation under section 24 of the Criminal Offence Victims Act [Qld] [The Act] for injuries sustained as a result of the personal offences which led to the convictions of the first respondent, Ms O'Neill, for common assault and, the second respondent, Mr Reynolds, for assault occasioning bodily harm in company on which charges they were sentenced on 9 October 2008.

The first respondent, Ms O'Neill, pleaded guilty on that date to one count of common assault on the applicant.

The second respondent, Mr Reynolds, pleaded guilty to one count of assault occasioning bodily harm in company of which the applicant was the victim. Although the certificate of conviction only refers to a count of common assault, it is clear from a review of the sentencing remarks, and the Court file, that the charge that he pleaded guilty to was as I have described it.

The third respondent, Mr McCoy, was the subject of a nolle prosequi on this charge and no further indictment was presented against him. Because the application can only be made against a person who has been convicted on indictment of a personal offence against the applicant, or who has been convicted on indictment, and such a personal offence has been taken into account, there is no jurisdiction to make any compensation order against the third respondent: see section 24 of the Act. I therefore limit my consideration of this application to the first and second respondents.

In relation to the offences to which this application relates, on 9 October 2008 Ms O'Neill was sentenced to 142 days' imprisonment with an equivalent period declared as time served in respect of that sentence, and Mr Reynolds was sentenced to imprisonment for two years with 258 days declared as time served in respect of that sentence. This sentence was immediately suspended for an operational period of three years. A conviction was recorded in each case.

The sentencing Judge described the offences as "unprovoked and savage."  He said that Ms O'Neill's involvement seemed to have been at a lower level, whereas Mr Reynolds was at a higher level. He considered that the applicant had been left with serious injuries. He described the victim impact statement as particularly troubling, describing the seriousness of the injuries suffered, and their regrettable long-term consequences. As his Honour said, her life had been thrown into turmoil and she continued at the time of sentencing, almost 12 months later, to suffer ongoing psychological and psychiatric effects.

The nature of the applicant's physical injuries are conveniently summarised in a report from the Princess Alexandra Hospital dated 15 January 2008 as:

• Multiple facial contusions.
• Bilateral zygomatic fractures.
• Bilateral nasal bone fractures.
• Mild concussion.
• Left arm and shoulder pain.

Reference is also made to anxiety. She was treated conservatively for the fractures, received pain relief and was reviewed by physiotherapy, an occupational therapist, a social worker and a faciomaxillary surgeon.

In her statement the applicant detailed the injuries as follows: "I suffered from bruising and swelling to my eyes, cheeks, mouth and neck. I also have to see a maxillofacial surgeon for follow-up about fracture to my cheek under my left eye, and there is a degenerative change in my c-spine [neck]. I have a great deal of pain to my head, neck and shoulders."  There is no suggestion that she underwent any operation for the fractures.

In an emergency department report the zygomatic fractures are said to be undisplaced. Reference is also made to her complaining of headaches and nausea. There is nothing in the hospital reports to satisfy me that the degenerative changes which have been noted to the cervical spine on diagnostic imaging were caused by the assault as opposed to the aging process. According to the emergency department report, the ongoing left arm pain seemed to be muscular bruising without any neurological deficit.

In an affidavit sworn on 29 May 2009, the applicant also refers to suffering grazing on her knees and feet. At that time she deposed that: "I currently suffer from post-traumatic stress disorder as outlined in Dr Barkla's report, and I continue to suffer with pain in my neck, shoulder, arms and hands."  In her victim impact statement of 17 June 2008 she described the pain associated with the shoulder, arms and hands as: "I have been left with a frozen right shoulder and with pain shooting down both arms, and my hands are painful to use."

The offences which resulted in the injuries that I have described occurred in the driveway of the applicant's home. At the time she was 51 years of age. These offences were unprovoked. On 27 October 2007 she was at the residence with her sister who was also assaulted by Mr Reynolds on this occasion. She had been visited by the respondents on that date. Each of them was known to her. There was nothing untoward in these visits, however, subsequently on the same date when she was in the driveway, she was punched quickly about twice in the mouth by Ms O'Neill. There is nothing to suggest that she was knocked to the ground as a result. In fact, she was able to throw Ms O'Neill to the ground to stop her hitting her more. She held Ms O'Neill by the throat by leaning over her. It was at this time that she was kicked by Mr Reynolds. Although he did this, she, not surprisingly, didn't want to let Ms O'Neill go because she would then have to protect herself against an assault by two people.

According to her witness statement, Mr Reynolds kicked her in the face and head, and the back of the head. There was nothing she could do to stop this, however, eventually he stopped and he, and the others, ran away. Mr McCoy was also in the vicinity, however, as I have said, he was not convicted of any assault against her on this occasion.

For completeness, I note that in accordance with an order of this Court on 16 November 2009, service of the origining application and supporting affidavits was effected by advertisement in the public notices section of the Courier Mail on 30 December 2009.

Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for an injury suffered by an applicant because of that offence: JMR obo SRR v Hornsby [2009] QDC 147 at [6]. A personal offence is an indictable offence committed against the person of someone: section 21 of the Act. An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in schedule 1 of the Act, or prescribed under a regulation: section 20 of the Act. Under section 25 [8] [a] an award of criminal compensation does not invoke the principles applicable to common law damages.

As stated in section 22 [3] it is intended to help the applicant not to reflect the compensation to which the applicant is otherwise entitled. A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000: see section 25 [2] of the Act and section 2 of the Criminal Offence Victims Regulation 1995 (Qld) and Riddle v Coffey [2002] 133 ACrimR 220; [2002] QCA 337 at [12]. Having regard to section 25 [3] - [4] an award for compensation must be made by reference to the compensation table which lists 36 different types of injury giving each a percentage, or range of percentages, of the scheme maximum. If the injury does not come within those itemised in the compensation table, or specified under a regulation, then the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table: section 25 [6].

Section 22 [4] of the Act requires compensation under that section to be calculated by assessing the injury as, or similar to, an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table: Riddle v Coffey at [15] applying R v Ward: ex parte Dooley [2001] 2 QDR436 at 438, 440. It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in that table on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases: Ward at 440.

Section 26 of the Act, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication: Riddle v Coffey at [18]; Hornsby at [6]. However, it does not discourage a Judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising out of one episode by reference to the relevant items in the compensation table in the manner required by section 25 [3] of the Act and Ward: Riddle v Coffey at [18]. Accordingly, where it is practical to make separate assessments under each applicable item in the table, whilst at the same time avoiding duplication, that course should be adopted: Wren v Gaulai [2008] QCA 148 at [24]. However, if an injury that is best described in one item of the compensation table is instead assessed together with another injury under another item in order to avoid duplication, it may therefore be necessary to make an adjustment to cater for differences between the ranges or the maximum for each item; Wren at [29].

Ultimately, the Court should ensure there is compliance with the use of methodology prescribed by section 25 which is mandatory: Wren at [22]; see also Hornsby at [6]. Section 25 [7] of the Act provides that in deciding whether an amount, or what amount should be ordered to be paid for an injury, the Court must have regard to everything relevant including, for example, any behaviour by the applicant that directly, or indirectly, contributed to the injury. Section 26 [7] provides that if each of more than one convicted person directly and materially contributed to the injury a Court may make a compensation order against each of more than one of the convicted persons.

Against this background it is submitted that the applicant has sustained the following injuries:

• Bruising and lacerations [minor/moderate] in respect of which it is submitted that she be awarded three per cent of the scheme maximum [$2,250].
• Facial fracture [minor] in respect of which it is submitted that she be awarded 10 per cent of the scheme maximum [$7,500].
• Fractured nose [no displacement] in respect of which it is submitted that she be awarded six per cent of the scheme maximum [$4,500].
• Mental or nervous shock [moderate] for which it is submitted that she be awarded 15 per cent of the scheme maximum [$11,250].

This is a total of $25,500.

I am satisfied on the balance of probabilities that the applicant suffered an injury as a result of the indictable offence committed by Mr Reynolds against her person on 27 October 2007. That indictable offence was assault occasioning bodily harm in company.

I agree with the submission on the applicant's behalf that as Ms O'Neill pleaded guilty and was convicted of common assault, she did not directly and materially contribute to the injuries for which the claim is made. These injuries constitute the bodily harm which only Mr Reynolds was convicted of causing. The only allegation against Ms O'Neill is that she struck the applicant about twice to the mouth without knocking her to the ground. This is minor compared to the kicking that the applicant received from Mr Reynolds, which I am satisfied directly and materially contributed to the injuries which are the subject of the claim, including the post-traumatic stress disorder that she suffered. This is confirmed by the photos of her face which are part of the Court file where the extent of the injuries beyond the left side of her mouth are readily apparent. I therefore agree with the submission that any award made in respect of this application should be made against Mr Reynolds alone.

Bodily injuries.

I'm satisfied that the applicant suffered bodily injuries as a result of Mr Reynolds' conduct towards her on this date, and these injuries involved bruising, abrasions and fractures.

Item 1 - bruising/laceration etc [minor/moderate] - three per cent - five per cent.

I agree with the submission on behalf of the applicant that the multiple facial contusions involving bruising and swelling to both eyes, and the muscular bruising consistent with causing the continuing pain to her shoulder, arms and hands, and the abrasions on her knees and feet warrant an assessment at the top of the range within item 1 of the table. In coming to this conclusion, I have taken into account that as at the time of the victim impact statement, she had been left with a frozen right shoulder and with pain shooting down both arms, and her hands were painful to use. The abrasions are a comparable item to bruising and lacerations.

In coming to this conclusion I have had regard to the requirement to scale the amount of compensation within the ranges set out in the table on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases. This is the approach I adopt to each type of injury for which a claim is made. I therefore assess this injury at the maximum of 3 per cent [$2,250].

Item 6 - facial fracture [minor] - 8 per cent - 14 per cent.

It is submitted in relation to the fractured cheek bone that due to the associated pain and subsequent headaches that an award of approximately 10 per cent of the scheme maximum should be made. This is supported by reference to an award for what is said to be a fracture of a similar degree in Shannon & Bradney v Corbett [District Court, Southport, 27/9/07; number 2004/147]. However, each decision on compensation of this nature is necessarily a discretionary one based on its own facts.

The full detail of the facts in Shannon & Bradney v Corbett do not appear in the summary of the decision provided to me. In the circumstances of this case, I consider that the applicant suffered a minor facial fracture, however I assess that it is at the bottom of the range set out within item 6 of the table, that is, it is at 8 per cent [out of a maximum of 14 per cent], that is, $6,000.

Item 4 - fractured nose [no displacement] - 5 per cent - 8 per cent.

In relation to the fractured nose, which I consider to be separate from her other injuries, despite the associated pain and discomfort, I consider that while it comes within item 4, that I should assess it at the bottom of the range set out in the table. In concluding this, I have considered Chase v Eyles [District Court, Maroochydore, 18/12/09; number 2009/314] which has been referred to me. That is, it is five per cent [out of a maximum of eight per cent]. This is $3,750.

Item 33 - mental or nervous shock [severe] - 20 - 34 per cent. Dr Barkla, who interviewed the applicant on 19 March 2009 has expressed the opinion that the applicant gives a history and exhibits symptoms that are entirely consistent with post-traumatic stress disorder that is severe and chronic in accordance with DSM IV 309.81. Dr Barkla says that the applicant was extremely distressed during the interview when the topic of the assault was raised. She was exhibiting psychological and physical symptoms of hyper arousal to the point where she was unable to discuss details of the incident. Immediately after the assault she developed nightmares. These have continued since the time of the accident, and occur every night. This was associated with marked sleep disturbance in the form of difficulty getting off to sleep and waking frequently during the night. She has prominent memories of the assault regularly, and sometimes a flashback of the event is precipitated by, for example, a knock at the door.

Immediately after the assault she locked herself up in her unit and stopped going out. This continued until she was taken to Melbourne to live with her sister in January 2008. She has had frequent panic attacks since the time of the assault. Her concentration is extremely impaired. She often loses her train of thought and finds this very frustrating. She is distrustful and very wary of others. She is constantly in a hyper-vigilant state with increased startle response and is irritable. Her day-to-day function is markedly impaired. Because her concentration is so impaired, she requires supervision with day-to-day tasks. She is unable to drive because of her very impaired concentration and her physical status. Her social functioning has deteriorated markedly. She describes herself as completely shut down. She states that she used to be a people person and is now completely withdrawn and only really has contact with her closest friends. As a result of her symptoms, she is completely unable to work. This is not withstanding the fact that she is a trained nurse and was working as a stock taker prior to the assault. She had previously been a strong and independent person who was always quite assertive, but having good social skills and good secure relationships with others. Following the assault, there was also a marked escalation in her intake of alcohol, and her liver tests demonstrate that her liver function has deteriorated as a result.

Dr Barkla has expressed the opinion that since the time of the assault she continued to be affected by the post-traumatic stress disorder in a significant way. In her opinion, the applicant will continue to experience significant symptoms for a number of years and most probably will experience residual symptoms for most of her life. Dr Barkla describes the applicant as having suffered a permanent incapacity as a result. She rates the applicant's incapacity as severe and says that while all treatment options have not been fully explored, and there is some hope of amelioration of some symptoms, based on the longevity of the symptoms to date, and the level of symptoms, she considers that the applicant will be incapacitated for a long period of time, i.e. over a number of years. She considers that the applicant has only a limited prospect of being able to work over the 12 to 24 months following the interview.

Further, there is a possibility that she may never return to work. Dr Barkla says that the applicant requires further counselling and treatment. She considers that the applicant will need to be in receipt of treatment for a minimum of two years, and possibly for five years. Ideally, this would consist of a combination of frequent review by a psychiatrist on a fortnightly to monthly basis, and approximately fortnightly psychological counselling and intervention. Dr Barkla estimates that the total cost range for such treatment is from $13,880 for two years and $21,980 for five years.

In RMC v NAC [2009] QSC149 Byrne SJA preferred the view of Lee J in R v Tiltman; ex parte Dawe [1995] QSC345 to that of Thomas JA in Ferguson v Kazakoff [2001] 2QDR 320; [2000] QSC156 and held that nervous shock within the Act is confined to a recognisable psychiatric illness or disorder. In AT v FG [2004] QCA293 Jerrard JA made reference to "establishing the existence of post-traumatic stress disorder and therefore of mental or nervous shock". In these circumstances I accept Dr Barkla's opinion and proceeding on the basis of Tiltman and RMC v NAC that for the purposes of the table there must be a recognisable psychiatric illness or disorder, I find that the applicant's post-traumatic stress disorder is compensable, as mental or nervous shock within the meaning of those words in the Act. I am also satisfied that Mr Reynolds's conduct constituting the assault occasioning bodily harm in company has directly and materially contributed to this disorder, and is a proper subject for compensation. However, having regard to Dr Barkla's opinion given 18 months after the offence, that not only had the post-traumatic stress disorder continued over that period, but this injury is of such a nature as to cause a permanent incapacity, and she is likely to continue to experience significant symptoms for a number of years, and most probably residual symptoms for most of her life, notwithstanding the submission that this injury is within the moderate rage, I find that as Dr Barkla describes it, the current level of her incapacity is severe. I therefore consider that it is severe mental or nervous shock within item 33 of the table. I assess the entitlement under this head at the bottom of the range, that is, at 20 per cent [out of a maximum of 34 per cent]. This is $15,000.

Section 25 [7] of the Act - contribution.

I find that the applicant's actions have not contributed in any way to these bodily injuries, and that there is nothing else that directly or indirectly contributed to these injuries which would affect the amounts that I have assessed should be awarded for them.

Conclusion and order. I assess compensation as follows:

1. (a)
   For the minor/moderate bruising and lacerations within item 1 of the compensation table - at 3 per cent of the scheme maximum [$2,250].

2. (b)
   For the minor facial fracture within item 6 of the compensation table - at 8 per cent of the scheme maximum [$6,000].

3. (c)
   For the fractured nose [no displacement] - item 4 of the compensation table - at 5 per cent of the scheme maximum [$3,750].

4. (d)
   For severe mental or nervous shock within item 33 of the compensation table - at 20 per cent of the scheme maximum [$15,000].

This results in a total amount of $27,000.

I order the second respondent, Mr Reynolds, to pay the applicant the sum of $27,000 by way of compensation for injuries suffered by her because of the offence of assault occasioning bodily harm in company committed against her person on 27 October 2007 for which he was convicted on his plea of guilty upon being charged on indictment presented on 7 August 2008 and in respect of which he was sentenced on 9 October 2008.