O'Hearn v Wang[2010] QDC 414

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused when he was assaulted by the respondent on 3 March 2008.  The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.  The application was filed on 25 November 2009 and therefore the application is to be determined in accordance with the Criminal Offence Victims Act 1995. 

2. [2]
   The application and supporting affidavits were served on the respondent on 11 August 2010.^[1]  A further affidavit exhibiting additional medical records was served on the respondent on 6 September 2010.^[2]

3. [3]
   There has been no appearance by or for the respondent.

4. [4]
   On 11 September 2009 in the District Court at Toowoomba the respondent pleaded guilty to assaulting the applicant, a police officer who was acting in the execution of his duty. She was sentenced to six months’ imprisonment wholly suspended for an operational period of six months.

Circumstances of the offence

5. [5]
   The applicant was a police constable stationed at the prostitution enforcement task force. On 3 March 2008 he made a pre-text telephone call to a mobile telephone number contained in an advertisement in the personal section of classified advertising in the Toowoomba newspaper “The Chronicle”. He later attended at a Toowoomba motel room where he gave the respondent a sum of money in exchange for sexual services. He then identified himself as a police officer and produced his police identification. Another police officer then attended at the motel room and conducted a search. The search revealed a sum of money, a diary, two mobile telephones and some loose papers. While the applicant was interviewing the respondent she suddenly walked over to the other police officer and snatched papers from his hand. The applicant warned her that if she obstructed police in the search she would be arrested and charged.

6. [6]
   The applicant went to remove the papers from the respondent. It appeared to the applicant that the respondent was going to tear up the documents. The applicant placed his left hand on the papers. The respondent bit his left hand in the area between the thumb and fingers. The applicant immediately felt pain and discomfort. The applicant noticed that his hand was bleeding and became anxious about the possibility of transmittable diseases. The respondent was arrested and taken to the Toowoomba watch-house where she was formally charged.

Injuries and medical reports

7. [7]
   After the incident the applicant received treatment for his hand at the Toowoomba police station. Photographs were taken by a scenes-of-crime officer. He then went to the Toowoomba Base Hospital where he was prescribed antibiotics and underwent blood tests for infectious diseases.^[3]

8. [8]
   On 2 March 2010, almost two years after the incident the applicant was assessed by Dr John Chalk, psychiatrist. Dr Chalk notes that because the applicant’s skin was broken he was exposed to the risk of hepatitis and HIV which necessitated blood testing, 3, 6 and 9 months after the event. According to Dr Chalk the applicant described the development of quite marked anxiety but not depressive symptoms.^[4]  The applicant reported a degree of sleep disturbance, rumination about the assault, and a degree of hypervigilance.^[5]

9. [9]
   Dr Chalk summarised his findings as follows:

“This 34 year old man was bitten in the course of work.  He described the development in the months following that of clinical symptoms that would have warranted a diagnosis of an adjustment disorder with anxious mood.  He did not have any treatment and over time, his blood tests proved to be clear and his anxieties essentially settled.  Whilst I would accept that this man did have some difficulties for a number of months and undoubtedly this may have sensitised him in his relationships particularly with Asians over a period of time, without the benefit of any specific treatment, he has improved and at the current time, does not have an Axis 1 psychiatric disorder.

In these circumstances, no assessment of permanent impairment can be made.”^[6]

The applicable principles

10. [10]
    The assessment of compensation is governed by Part 3 Criminal Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)). 

11. [11]
    The maximum amount of compensation provided under the Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the Scheme maximum (s 25(2)). The Scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 is $75,000.  The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the Compensation Table (s 25(4)).  If the applicant suffers more than one of the injuries in the Compensation Table, s 25(3) requires that the applicable amounts be added together, but if the total is more than the Scheme maximum, only the Scheme maximum may be ordered to be paid.  The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)). 

12. [12]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[7]  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The Court explained:

“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% to 34% 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%.  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 the psychological results of an assault could, on that account, get no more than $25,500.00.”^[8]

The applicant’s submissions

13. [13]
    In his written submissions, Mr Wilson, for the applicant submitted that the following injuries in the Compensation Table were applicable:

14. [14]
    Mr Wilson therefore sought an award of 11% of the Scheme maximum which is $8,250.

15. [15]
    The applicant sustained a bite to the left hand. The bite caused bleeding. The range for minor/moderate bruising and laceration in Item 1 of the Compensation Table is 1% to 3% of the scheme maximum. There is limited evidence as to the applicant’s injury. However, in my view 2% of the Scheme maximum is an appropriate award for that injury. This results in an award of $1,500 for the applicant’s physical injury.

16. [16]
    To his credit the applicant has not exaggerated his psychological symptoms. Dr Chalk’s assessment is that in the months following the assault the applicant suffered an adjustment disorder with anxious mood. The range for minor mental or nervous shock in Item 31 of the Compensation Table is 2% to 10% of the scheme maximum. In my view, 6% of the Scheme maximum is an appropriate assessment for the applicant’s psychological injury. This leads to an assessment of $4,500.

17. [17]
    The total assessment is therefore $6,000.

18. [18]
    There is no behaviour of the applicant that directly or indirectly contributed to his injuries (s 25(7)).

Order

19. [19]
    I order that the respondent pay to the applicant the sum of $6,000 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of serious assault which led to the conviction of the respondent in the District Court at Toowoomba on 11 September 2009.