Patch v Patch[2010] QDC 506

[2010] QDC 506

DISTRICT COURT

CIVIL JURISDICTION

JUDGE R JONES

No 58 of 2009

BRISBANE

DATE 16/12/2010

JUDGMENT

HIS HONOUR:  This is an application for compensation pursuant to Section 24 of the Criminal Offences Victims' Act 1995.

That Act was repealed by the introduction of the Victims of Crimes Assistance Act 2009.

In this case, the application was filed on 14 December 2009.  The Victims of Crimes Assistance Act came into force on 1 December 2009.  However notwithstanding the fact that the application was filed after the commencement of that legislation, I am satisfied that the transitional provisions of the Victims of Crime Assistance Act 2009 permit me to deal with and determine this application.

In that regard, I refer specifically to Section 154 and Section 155(1) and (2)(b) of the Victims of Crime Assistance Act 2009.

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

The scheme of the Act and it is 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 the Regulations.

In this application, the amount claimed is $69,000 or $71,250, depending on the final figures adopted for the stab wound injuries.  Those amounts are made up as follows:

bruising and lacerations, 5 per cent, $3750, bodily scarring, 20 per cent, $15,000, stab wounds at 37 to 40 percent, $27,750 to $30,000 and mental or nervous shock at 30 per cent, $22,500.

The applicant is currently 31 years of age and was 29 years at the time of the offence.  On 18 October 2008, the applicant was assaulted by the respondent.  The respondent was his brother.  As a result of this assault, the respondent pleaded guilty to the offence of causing grievous bodily harm to the applicant.

On 9 September 2009, the respondent was sentenced to five years' imprisonment to be suspended after serving 20 months' imprisonment with an operational period of five years.  A declaration was also made in respect of pre-sentence custody.

The circumstances surrounding the assault were that on 18 October 2008, the respondent was living with the applicant, the applicant's girlfriend and their two children.  On the day an altercation took place between the applicant and the applicant's girlfriend's mother's partner.  As a result of this altercation, the applicant and the respondent were involved in a further altercation.  It was during this later assault that the applicant was stabbed by the respondent seven times.

The applicant was attacked by the respondent with a serrated edged knife, inflicting stab wounds to his neck, left armpit, left chest area, groin area and interior abdomen.  As was noted by the sentencing Judge, it was a savage and severe attack.

Following the assault, the applicant underwent surgery to repair a punctured and collapsed lung and internal bleeding.  These wounds were life-threatening.

After being taken to the Bundaberg Hospital, it was noted he was suffering from seven puncture wounds and a left haemothorax.  As a result of the haemothorax an endotracheal tube was inserted and as a result of the injuries to the applicant's abdomen, the applicant was required to undergo abdominal surgery.  Following the surgery, an abscess developed on one of the wound sites which required further surgery.

In addition to the physical injuries suffered as a result of the attack on the applicant, he also cited psychological injuries.  The applicant was consulted by a Dr Jenkins.  In his report at page 2, Dr Jenkins noted that the applicant was suffering from the following symptomology, which was described as of "moderate to severe intensity."

The symptoms included irritability, depressed mood, loss of interest in normal activity, increasing work related function, significant sleep disturbance, anxiety symptoms, impaired concentration, avoidance of crowds and shopping, worry and fearfulness, difficulty in completing complex tasks, chronic pain, financial worries, social isolation, loss of trust in others.

At page 3 the doctor reported, "In addition to multiple physical consequences which required complex and ongoing medical care, he is left with chronic abdominal and chest pain.  He also suffers symptoms consistent with DSM4 diagnosis and  post traumatic stress disorder and major depressive disorder.  There are no additional psychological, social or environmental causes of these conditions other than his assault.  He clearly suffers from a chronic pain condition complicated by post-traumatic stress disorder and major depressant disorder, all of which are a result of the assault."

This diagnosis in my view constitutes a severe form of this type of injury.  It is to be noted that the injury is described under the legislation as mental or nervous shock, not post-traumatic stress disorder.  In this case the applicant has been diagnosed as suffering post-traumatic stress disorder and major depressive disorder.   No doubt there would be a number of common symptoms between those two

Disorders, but nonetheless, the doctor's seen fit to describe them as distinct disorders.

It is obvious also that the overall trauma of the incident would have been significant.  On balance, I consider the amount contended for this injury of 30 per cent, leaving aside for the moment the issue of contribution, is reasonable.

Turning then to the injury of bruising and lacerations.  The severity of the stab wounds as recorded in the various medical and hospital reports make it tolerably clear that significant bruising would have accompanied the injuries.  On  balance, again leaving aside for the moment the question of contribution, the amount claimed of five per cent is considered reasonable.

As to the stab wounds themselves, the consequences were severe, as I have already referred to, a number of surgical procedures were required.  It is also relevant here that there were multiple stab wounds, seven in total.

Under the legislation, on balance I consider the level of these injuries to be at the severe end of the scale.  A severe injury of this type attracts a range of 15 to 40 per cent.  That is a very wide range indeed.  However for the reasons expressed above, and in particular, the severity and multiple nature of the wounds, I consider an allowance towards the upper end of the scale to be appropriate and would, but for the matter of contribution, adopt 35 per cent as an appropriate level of compensation.

Turning then finally to the question of scarring.  As indicated, there are multiple scars to various parts of the applicant's body to varying degrees of severity.  My attention was drawn particularly to scarring of the abdomen which shows a wound some six weeks after the actual injury was incurred, which is about six centimetres in length and approximately two to three centimetres across, scarring would be significant.

However what also needs to be taken into account in my view is the fact that it is a scar capable of being appropriately covered for most occasions.  Notwithstanding that, the scarring is at the severe end of the spectrum.  The appropriate allowance is 10 per cent to 30 per cent.

Having regard to the, in particular, the extent of the abdominal scarring, I consider an allowance mid-range, towards the middle of that range, to be appropriate and will accordingly but for the issue of his contribution, adopt 20 per cent.

That is not the end of the matter, however.  Pursuant to Section 25(7) of the Act, in deciding what amounts should be paid by way of compensation, I must take into account any behaviour on the part of the applicant that directly or indirectly contributed to the injury or injuries of the applicant.

In this regard, comments made by the sentencing Judge are relevant.  His Honour noted at page 3 of the transcript that as a consequence of all adults present being involved in consuming material amounts of alcohol and/or drugs it created a very tense situation.

At page 3L40 through to page 4L15 of the transcript, his Honour made the following observation:  "At one point you (the respondent here) grabbed your brother's (the applicant) de facto partner and dragged her down the hallway to the bedroom and said, 'Stay here, you fucking bitch or I'll kick your guts in.'  She yelled out to your brother who, perhaps not unsurprisingly, then began to fight with you.  Your brother's girlfriend went to her bedroom with the children and locked the door.  A short time later your brother asked if she was all right.  He was at this stage still fairly agitated and kicked a hole in the door and went back into the lounge room where you were.  It was then the stabbing occurred.  It was very clearly a gross overreacting in the circumstances, but the context remains of some relevance in the sense that the attack does not appear to have been a cold blooded premeditated and planned attack, but rather appears to have been something done in the heat of argument and conflict."

As was pointed out by Mr George, in no way could any of the actions taken by the applicant here provide justification for what occurred.  I agree.  However, I do not feel I can ignore the sentencing remarks of the sentencing Judge and it appears to me that the only conclusion reasonably open was that his Honour from my reading of the reasons, based to a significant extent on an agreed statement of the facts, reached the conclusion that the applicant was involved, at least to some extent, in behaviour which agitated or provoked the respondent.

I therefore consider that in an indirect way, the applicant has contributed to his injuries.  However, having regard to what it appears the applicant might have been responsible for, that pales into insignificance when one has regard to the actual nature of the assault against him.

Accordingly, in my view, the level of discount to take into  account contribution would be at the very low end of the scale and I will apply only a 10 per cent discount to take contribution into account.

I should say here that in my view, I have distinguished a decision of Newman v. Neville (2010) QDC 257 as here. I consider that there is a degree of immediacy between the actions of the applicant and the reaction of the respondent which was not present in that case.

Turning then to how contribution ought to be treated.  In the decision of the Court of Appeal of Zykoff v. McKenna & Jones (2001) QCA 442, her Honour Justice Holmes with whom the President agreed at paragraph 33 said," Thus my examination of the Section convinces me that a two or three stage process is entailed.  Where there is more than one injury, the first step is to arrive at the amount in respect of each injury, the second to add those amounts together, and the third, to arrive at the amount of the compensation order.  Obviously where only one injury is involved, the second of those steps is omitted.  It follows from this analysis that subsection (7) comes into operation at the time when the amounts to be paid for the respective injuries are being assessed and not at a later stage when the total amount payable under the compensation order is being determined.  That is to say, it is in determining the percentage allowed for each injury that the Court must have regard to the relevant matters including contribution."

My understanding of that passage and in particular the last sentence means that in taking into account contribution, it is the actual percentage allowed in respect of each injury that has to be adjusted to take account of the level of contribution.

Having determined that the amount of contribution can be limited to 10 per cent, it would seem to then follow that the appropriate adjustments to make are that in respect of the injury of bruising and laceration, five per cent should be reduced to 4.5 per cent, the amount allowed for stabbing of 35 per cent should be reduced to 31.5 per cent, the allowance for nervous shock of 30 per cent reduced to 27 per cent and the allowance for scarring reduced from 20 per cent to 18 per cent.  This would result in a total figure of $60,750.

For the reasons given, I order that the respondent pay to the applicant the sum of $60,750 as compensation under the Criminal Offence Victims' Act 1995.