Nielsen v Bullingham[2010] QDC 32

DISTRICT COURT OF QUEENSLAND

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN

No 3607 of 2009

BRISBANE 

DATE 27/01/2010

ORDER

HIS HONOUR:  This is an application for criminal compensation under section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for injuries sustained because of the offence of serious assault upon the applicant on or about the 29th day of November 2006 at Fortitude Valley in the State of Queensland.

The respondent was convicted on indictment for this offence on 16 January 2008. The respondent pleaded guilty and was sentenced by Judge Trafford-Walker on that date. A conviction was recorded and he was sentenced to be imprisoned for a period of 12 months with an order that his parole release date be fixed as 16 April 2008.

The originating application and the relevant supporting material was served personally on the respondent on 5 January 2010. There was no appearance by the respondent on the date of this hearing.

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 per Dearden DCJ at paragraph [6].

Under section 21 a personal offence is an indictable offence committed against the person of someone. Under section 20 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.

In accordance with section 25(8)(a) an award of criminal compensation under the Act 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.

With reference to section 25(2) of the Act and section 2 of the Criminal Offence Victims Regulation 1995 (Qld) a compensation order cannot be made for an amount more than the prescribed scheme maximum which is presently $75,000:  Riddle -v- Coffey [2002] 133 A Crim R 220; [2002] QCA 337 at [12]. An award for compensation must be made by reference to the compensation table which lists 36 types of injury giving each a percentage or range of percentages of the scheme maximum.

In deciding the amount of compensation to be paid for an injury specified under a regulation the Court is limited to making an order for the prescribed amount. If the injury does not come within those itemised in the compensation table or specified under a regulation then, having regard to section 25(6) of the Act, the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table.

Section 22(4) of the Act requires compensation under the 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 percentages of the scheme maximum set out in the table:  Riddle -v- Coffey [2002] 133 A Crim R 220 at 223; [2002] QCA 337 at [15] applying R -v- Ward; ex parte Dooley [2001] 2 QdR 436 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 224; and at [18]; JMR obo SRR -v- Hornsby [2009] QDC 147 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 items arising from 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.

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]; JMR obo SRR -v- Hornsby [2009] QDC 147 at [6].

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 maximum for each item: Wren at [29] and Hornsby at [6].

Ultimately, the Court should ensure that there is compliance with the use of the methodology prescribed by section 25 of the Act which is mandatory: Wren at [29]; 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.

In determining the factual basis for this application I am assisted by the applicant's affidavit, sworn on 26 November 2009, which exhibits his Witness Statement and his Victim Impact Statement. The Victim Impact Statement is dated 10 April 2007. I am also assisted by the sentencing remarks of his Honour Judge Trafford-Walker and the psychological report by Mr Chittenden.

Dr Chittenden's report contains what I consider to be an accurate summary of the incident which is the subject of this application. As set out in that report, the applicant is a serving police officer who was working with a colleague on the night of 29 November 2006. They discovered the respondent who was asleep at a bus-stop. He had to be woken up but failed to answer questions with the result that he was arrested for being drunk in a public place. He was then taken back to the Fortitude Valley Police Station.

On arrival at the Police Station the respondent became aggressive, abusive and violent and therefore he had to be restrained. This is set out in more detail in the applicant's statement of 22 December 2006 in which he states that the respondent, "Stood up and kicked a plastic chair that hit the wall of the Station and started to yell and scream loudly". As a result he, together with his colleague, restrained the respondent and placed him in handcuffs. At this stage, the police officers asked for a van to transport the respondent to the watch-house as he was being very violent towards the police.

When the van arrived the applicant and two other police officers tried to move the respondent into the back of the vehicle. He started to kick his legs and thrash his head around. As they were trying to control him, the respondent turned his head towards the applicant and appeared to suck back and spit saliva which landed on the pant's leg of the applicant. It appeared to the applicant to be a very deliberate act. This stunned the applicant who was then bitten by the respondent who placed his mouth over the applicant's left forearm and bit him.

The applicant says that this caused him immediate pain as he felt the teeth dig into his skin. At that time he thought that he had taken a chunk from his arm and he felt a stinging sensation. Having got the man into the van, the applicant checked on the damage and saw that there were deep teeth marks in his arm.

Photographs of the injury sustained, which were taken approximately one and a half to two hours after the incident, have been tendered during this hearing. These photographs show a distinct oval-shaped bite mark to the lower part of the applicant's left arm. The applicant gave evidence before me and said that the injury was initially painful to touch however the pain subsided after 24 to 36 hours. No sutures were required as a result of the bite.

The applicant had to go with the prisoner to the watch house in order to complete the details relating to the arrest. In checking on his background it was discovered that the respondent was HIV positive. This caused him considerable anxiety and his thoughts went to his partner and seven-year-old step-son. He could not clean or wash the arm as a photograph of the bite had to be taken. Once that had occurred the applicant says that the waiting was very stressful. He was able to wash the arm and went to a hospital for the first of a number of blood tests.

On arriving home he had to explain the situation to his partner. She became very anxious and stressed. This was made worse when, the following day, he was informed by the Government Medical Officer that the respondent was in fact HIV positive. The applicant had said in his affidavit sworn on 26 November 2009 that he was also told on this date that the respondent carried Hepatitis C and Hepatitis B. This is mentioned in Mr Chittenden's report. However, a further affidavit by the applicant sworn today was filed by leave during these proceedings. In this affidavit the applicant deposes that the only information he received was that the respondent was infected by the HIV virus.

However, that in itself is a serious matter for a person in the applicant's position as was succinctly stated by Judge Trafford-Walker in his sentencing remarks as follows:

"Unfortunately when certain diseases are now within our community and can be spread in such a way, and you ought know better than anybody else of the consequences of all that. It has been a devastating experience for this young police officer who has a partner and a young child. I can imagine what dreadful emotional strain there must have been on that family." 

In his report, Mr Chittenden goes on to explain the post-incident history. The applicant was required to take anti-viral medication. As a consequence he suffered side-effects of nausea. However, he was required to take the tablets for six weeks. He suffered from severe diahorrea, night sweats, and became dehydrated and at times light-headed.

He had to return to duty following the incident and in addition to feeling unwell he also had to deal with a number of violent offenders. He found he could not get close to them and was concerned he was letting his colleagues down or even endangering their safety by his behaviour.

The situation had a profound effect on his relationships. There were real concerns he could infect his partner and the child. They were planning to have a child of their own but this, at least for the time being, was out of the question. He found he could not cuddle his step-son with whom he had an excellent relationship, and neither could he play with him as previously.

The situation was compounded by the fact that he was required to have blood tests and have consultations with the doctor responsible in his own time and because of his shifts what would normally have been a three to four month wait for the results of testing became a period of nine months before he was given the final result. During this time his partner did not want him to touch either herself or the child and the relationship ended. This devastated the applicant as he saw the boy as his own and felt the relationship was a lasting one.

The situation also affected him at work. He was no longer as confident and would handcuff anyone that he had to apprehend. He admits he does not have the patience he once had and this caused difficulties. Following the incident he drank more, avoided social occasions and even now is very wary about where he goes. Fortunately the test results showed he had not contracted the diseases and he has now found a new partner who is a police officer. Since that time he has reduced his drinking to normal levels.

Mr Chittenden's conclusion is that the applicant was severely traumatised when he was bitten by the respondent following which he was told that the respondent was HIV positive. I note that Mr Chittenden also proceeded upon the basis that the applicant had been told that the respondent suffered from Hepatitis B and C. However, considering the serious consequences of being bitten by a person who was HIV positive, I do not consider the fact that the applicant now says that he was not told this by the Government Medical Officer has a material affect on the ultimate opinion expressed by Mr Chittenden.

Whether he suffered from Hepatitis B and C or not, I consider that it is accurate for Mr Chittenden to state that it is very difficult to describe the horror and fear experienced when you are informed there is a real risk that you may have contracted such diseases. These extreme feelings continued for many weeks until the final blood tests that were negative became available.

As a result, the applicant had problems sleeping, became depressed, anxious and angry. This not only affected his home life but also his work. As I have indicated, he and his then partner separated because the fear of infection either to his partner or her son was too great.

The applicant could not stop thinking about the ramifications if the tests came out positive. He became careful when dealing with prisoners, often holding back when somebody appeared to be violent or drunk. He avoided social occasions and although he has fortunately found a new partner who is in the police and understands his situation, resulting in an improvement of his life, Mr Chittenden expresses the view that the applicant will never completely overcome the trauma that he experienced.

Mr Chittenden's ultimate opinion is as follows:

"I would rate the degree of psychological impact as moderate. Not knowing whether or not one is infected over a long period is extremely traumatic, even if eventually the result is negative. I would diagnose him as suffering from an adjustment disorder with mild anxiety and depressed moods. He is still exhibiting anxiety when certain situations occur during his police work and emotionally feels depressed when events remind him of what occurred."

In these circumstances Mr Reid, who appears on behalf of the applicant, seeks a compensation order for bodily injuries sustained by the applicant and also for mental and nervous shock. The bodily injuries for which compensation are sought relate to the abrasion to his arm and to bodily scarring which he has suffered as a result.

It is submitted that the abrasion comes within item 1 of the Compensation Table which relates to bruising/lacerations etc. (minor/moderate) which may be compensated at between one per cent and three per cent of the scheme maximum. In this case Mr Reid submits that the appropriate percentage of the scheme maximum is the maximum of three per cent.

In relation to the bodily scarring, he submits that this injury comes within item 27 of the Table for facial disfigurement or bodily scarring (minor/moderate) for which the percentage of the scheme maximum which may be awarded is between two and 10 per cent. Mr Reid submits that I should compensate the applicant at the bottom of that range.

It is convenient to state at this point that I was able to observe the scar relied upon during the applicant's evidence. I could not see it while he sat in the witness box. Therefore I allowed him to approach the bench. As the applicant frankly concedes, it is a minor scar on the arm. It is small and not easy to see unless it is pointed out. The applicant told me in his evidence that it was more pronounced during the first 12 months after the incident and served to remind him of the incident along with everything else. Fortunately it no longer has that consequence after a period of three years.

In relation to the claim for mental or nervous shock, Mr Reid submits that this should be compensated within item 32 of the compensation table which is for mental or nervous shock (moderate) for which between 10 and 20 per cent of the scheme maximum may be awarded. He submits that I should award compensation at the top of that range.

If I was to accept Mr Reid's submissions I would compensate the applicant for the abrasion in the sum of $2,250; for the scarring, in the sum of $1,500; and for the mental or nervous shock, in the sum of $15,000, being a total of $18,750.

I am satisfied on the balance of probabilities that the applicant suffered an injury as a result of the indictable offence committed by the respondent against his person on or about the 29th of November 2006. The injuries suffered by the applicant were bodily injuries and mental or nervous shock, as has been submitted on the applicant's behalf.

I accept that the applicant suffered an abrasion to his left arm which is demonstrated by the photographs which were taken shortly afterwards. I accept that that abrasion is appropriately to be considered within item 1 of the table. As I have said, the percentage of the scheme maximum which I have a discretion to award for such an injury is between one and three per cent.

The submission on behalf of the applicant is that I should award compensation at the top of that range. As I have said, compensation is 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 percentages of the scheme maximum as set out in the table.

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.

I'm not convinced that the abrasion, which was suffered by the applicant in this case, which has ultimately become a scar, and in respect of which pain subsided within 24 to 36 hours, is the most serious case. I assess that the injury should be compensated at two per cent of the scheme maximum; that is that compensation of $1,500 should be awarded for that injury.

In relation to the bodily scarring, I am convinced that it is a separate injury from the abrasion which has now disappeared, although it is the consequences of that abrasion. In coming to that conclusion I am assisted by the approach that was taken by Rafter DCJ in Shannon v. Barry [2009] QDC 392 in which the applicant was also a police officer who, amongst other things, suffered a bite to her hand. That resulted in bruising but a minor scar was left.

In that case his Honour ordered compensation in relation to both the bruising and the bodily scarring. In this case the submission on behalf of the applicant is that compensation be awarded at the lowest percentage of the range. Because as I have previously described it, the bodily scarring is of a minor nature, I agree with this submission and accordingly I assess that it is to be compensated at two percent of the scheme maximum. This is again an amount of $1,500.

In relation to the mental or nervous shock for which compensation has been claimed in RMC -v- NAC [2009] QSC 149 Byrne SJA preferred the view of Lee J in R -v- Tiltman; ex parte Dawe [1995] QSC 345 to that of Thomas JA in Ferguson -v- Kazakoff [2001] 2 QDR 320; [2000] QSC 156 and held that nervous shock within the Act is confined to a recognisable psychiatric illness or disorder.

In this case I accept Mr Chittenden's opinion that as a consequence of the respondent's conduct the applicant has suffered from an adjustment disorder with mixed anxiety and depressed moods within DSM(IV)309.28 and that this is a recognisable psychiatric illness or disorder for the purposes of Tiltman and RMC -v- NAC.

The issue is whether I should award compensation at the top of the available range as submitted by Mr Reid having regard to the fact that compensation at the top of the range is reserved for the most serious cases. In relation to this issue I have been referred to two decisions of the District Court of Queensland. These are Nikas -v- Melville [2004] QDC 460 and Shannon -v- Barry to which I have previously referred.

In Nikas -v- Melville, Robin DCJ compensated the applicant police officer at the maximum available within the range with which this case is also concerned. In that case the police officer had been spat on by the respondent while attempting to control his disorderly behaviour in the watch-house.

The respondent's bloody fluid came in contact with the applicant's face and parts of it went into his mouth. The respondent stated that as a result the applicant would contract a communicable disease. In that case the applicant had to wait six months before being cleared of any communicable diseases. As a consequence the applicant suffered an adjustment disorder which had fortunately subsided since that time.

There are similarities to the case of this applicant. That case not only involved a long and agonising wait for the results of the testing to become known but the applicant's plans with his partner to begin a family were put on hold and their intimate relations were comprised severely. His attitude to police service work also changed. Although he had recovered well he had less enthusiasm for police work than he had when he started out.

His Honour was referred and applied earlier decisions of this Court by Senior Judge Skoien in Tolscher -v- George, 6 of 2001, 6 November 2001; and Wakerly -v- Jupiter, [2002] QDC 283, 19 of 2002, 25 September 2002. One of those cases involved spitting and the other involved biting. In both of those matters Senior Judge Skoien assessed the psychological aspect by applying 20 per cent of the scheme maximum under the

item of the compensation table with which I am presently concerned.

Robin DCJ said as follows: "I must say I have reservations about the application of that percentage where the concededly moderate mental or nervous shock has resolved after months. However, Senior Judge Skoien quite deliberately took that approach, as one can see from his reasons. I think it would be invidious to depart from what appears to be a tariff that has been set by him. I cannot find any basis on which distinctions ought to be made and in those circumstances I accept the submission of Mr Evans that an appropriate award is $15,000 and that is what the respondent will be ordered to pay to the applicant pursuant to the Act."

In Shannon v Barry a respondent who had become aggressive and was struggling with police officers who had arrested her spat directly into the eyes and mouth of the applicant police officer. The respondent also firmly bit the applicant's hand. The applicant was later told by fellow officers that the respondent had indicated to them that the respondent's partner had Hepatitis C.

Again, there were similar consequences to the applicant in that case as occurred in this case. The applicant in that case stated that since the incident she was less patient and easily irritated. She also underwent blood testing at intervals of three, six and 12 months after the assault and has continued to suffer from anxiety despite being cleared of any disease.

That is similar to the situation of the applicant before me, whom Mr Chittenden says is still exhibiting anxiety when certain situations occur during his police work and emotionally feels depressed when events remind him of what occurred.

She also experienced a breakdown in her relationship with her partner as a consequence of the respondent's conduct. That applicant no longer worked as a first response police officer because she no longer felt motivated to arrest people and her new position did not cause her as much concern for her safety. She also experienced an adjustment disorder with anxiety.

In determining the compensation to be awarded in that case Rafter DCJ said:

[33]"In relation to mental or nervous shock Mr Davies submitted 20 per cent of the scheme maximum was an appropriate award. Mr Davies referred me to the decisions in Nikas v Melville and Wakerley v Jupiter in which 20 per cent of the scheme maximum was awarded for mental or nervous shock. He submitted that the applicant continues to suffer symptoms whereas in those cases the applicants made complete recoveries. He submitted that the applicant suffered the same, if not more severe, symptoms as the applicants in those cases.

[34],The assessment of injury must be made in accordance with the approach in R v Ward; ex parte Dooley as outlined above."

His Honour had quoted the following passage from Ward at para [5], "But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the most serious case which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort. A crime victim permanently institutionalised by psychological results of an assault could on that account get no more than $25,500."

Judge Rafter went on to state at [35], "The applicant clearly suffered from serious psychological symptoms. The experience was distressing. The applicant's relationship broke down and as a result of the incident she required a change of position within the police service."  He assessed the appropriate award of compensation for mental or nervous shock at 17 per cent or $12,750. This was notwithstanding that he was aware of the decisions by Senior Judge Skoien and Robin DCJ on which Mr Reid relies.

Judge Rafter's approach appears to me to be in accordance with the proposition which I have already referred to from Wren v Gaulai [2008] QCA 148 at [22] which has been cited with approval by Dearden DCJ in Hornsby at [6], that ultimately the Court should ensure there is compliance with the use of the methodology prescribed by section 25 of the Act, which is mandatory. That includes 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.

While each case must depend on its own facts there is not a significant difference between the situation of the applicant in this case and the applicant before Judge Rafter. In each case they were continuing to suffer some ongoing symptoms of anxiety as a result of the respondent's conduct. In each case their approach to police work had been affected and they have suffered a relationship break-up.

In the circumstances I do not consider that the applicant has suffered the most serious case of mental or nervous shock for which the maximum amount of compensation allowed should be awarded. Scaling the amount of compensation within the range of 10 per cent to 20 per cent I assess the entitlement under this head at 18 per cent of the scheme maximum, that is an amount of $16,500.

With reference to section 25(7) of the Act I find that the applicant's actions had not contributed in any way to the injuries that he suffered and there is nothing else that directly or indirectly contributed to those injuries which would affect the amounts I have assessed should be awarded to him. In this case the applicant was simply lawfully performing his duties as a police officer to restrain a person whom he had earlier arrested from acting violently.

In conclusion, I assess compensation as follows:  for the abrasion within item 2 of the compensation table - at two per cent of the scheme maximum ($1,500);  for the bodily scarring within item 27 of the compensation table - at two per cent of the scheme maximum ($1,500);  for moderate mental or nervous shock within item 32 of the compensation table at 18 per cent of the scheme maximum ($13,500).

This results in a total amount of $16,500.

I order the respondent pay the applicant the sum of $16,500 by way of compensation for injuries suffered by him because of the offence of serious assault committed by the respondent against his person on or about 29 November 2006 for which the respondent was convicted on his plea of guilty upon being charged on an indictment presented on 18 October 2007 and in respect of which he was sentenced on 16 January 2008.