Lewis v Rasmussen[2010] QDC 542

[2010] QDC 542

DISTRICT COURT

CIVIL JURISDICTION

JUDGE JONES

No 3706 of 2009

BRISBANE

DATE 21/10/2010

ORDER

HIS HONOUR:  The applicant seeks compensation for injuries he sustained as a result of an assault by the respondent.  The respondent was sentenced by his Honour Senior Judge Trafford‑Walker on 26 September 2008, after the respondent had pleaded guilty to committing the offence of grievous bodily harm.

The applicant applies for compensation, pursuant to Section 24 of the Criminal Offences Victims Act 1995.  The maximum amount of compensation that can be awarded under that Act is $75,000.

Within Schedule 1, various injuries which are compensable, are identified as is a percentage range.  That percentage range, generally speaking, describes a range from minor through moderate to severe.  On the material before me, the assault was a serious one and an unprovoked one.  The sentence imposed was that the respondent be sentenced to two years and nine months imprisonment, suspended from 27 September 2008 for a period of two years and nine months.  The injuries suffered by the applicant fall into three categories, bruising/laceration.  Under that heading, the amount of compensation sought is two per cent of the maximum, namely $1,500.  That two percent lies mid-way between the allowance for that form of injury from minor to moderate.  On the material before me, the amount of $1,500 seems reasonable for this injury.

As a consequence of the assault‑‑‑‑‑

Also, as a result of the assault, the applicant suffered a broken jaw.  This caused him a considerable amount of pain and discomfort.  Surgery was required and in fact some six plates were inserted to re-set his jaw.

The pain was so severe that at least, in the earlier stages following surgery, morphine was required to ease the pain.  Not surprisingly, the applicant was unable to eat hard food for a period of six weeks and for a significant period thereafter his diet was otherwise compromised.  As a result of the assault, he was unable to work for a period of some six weeks. 

The applicant was assessed by a Dr Erzetic who, after particularising some of the details of the injury, determined that the applicant had sustained an injury within this description of a moderate type.

Under Schedule 1 of the legislation, a moderate facial fracture provides for a range of 14 per cent to 20 per cent.  The applicant here seeks 15 per cent which is at the lower end of the moderate range.

In all the circumstances I consider that this is also a reasonable claim and accordingly will award the amount of $11,250.  The third injury claimed for is for mental or nervous shock.  As has been identified by Ms Worsnop for the applicant, this category of injury has been the subject of some judicial debate in recent times.

In the Queen v Kazakoff ex partie Ferguson [2001] 2 Queensland Reports 230, his Honour Justice Thomas, in appeal, said in paragraph 17:  "Clearly, the ordinary usage of the term 'nervous shock' has been to describe situations of injury to health, illness or some abnormal condition of mind or body, over and above that of normal human reaction or emotion following a stressful event."

And then at paragraph 21 his Honour went on to say:  "To limit compensation to cases where a diagnosable mental disorder or psychiatric illness results, would give the term 'mental or nervous shock' too limited a meaning."

That wider, or broader approach, described by Justice Thomas, had been an approach considered uncontroversial for a period of time.  However, in RMC v NAC [2009] QSC149, his Honour Justice Byrne considered what constituted nervous shock in some detail and at paragraph 37 and 38 said:  "The meaning that Thomas JA attributed to 'nervous shock' in the Act, is founded on a misapprehension about the reach of the phrase in civil claims.  Lee J's conception of the boundaries of nervous shock is to be preferred.  Nervous shock, in the Act, is confined to a recognisable psychiatric illness or disorder."

That there is tension between the decision of his Honour Justice Byrne and that of his Honour Justice Thomas is immediately apparent.  That tension has been the subject of some consideration by this Court. 

However, before I go onto that, it is necessary to deal with the case of re: JI v AV [2001] QCA510, a decision of the Court of Appeal constituted by Justice Williams in appeals and Justice Chesterman, as he then was, and Justice Atkinson.

At paragraph 59 of that decision, her Honour Justice Atkinson said:  "The Courts have interpreted mental or nervous shock in the compensation table broadly.  It does not require a diagnosed psychiatric illness."  I pause there to note that her Honour refers, in that regard, to the case of MR v Webb [2001] QCA113.

Returning then to the quote:  "As Thomas JA held in Ferguson and Kazakoff, compensation for a mental or nervous shock is not limited to cases where there is a diagnosable mental disorder or psychiatric illness resulting from the criminal offence, although it must be more than fear, fright, unpleasant memories or anger or other adverse impact on feelings."

It would appear that his Honour Justice Byrne, in RMC, was not referred to that decision of the Court of Appeal.  In a recent decision of this Court, in Michael v Christiansen, his Honour Judge McGill, after reviewing authorities to which I have referred and others, at paragraph 15 said:  "That decision is subsequently frequently being relied on, or applied.  Recently, however, Byrne SJA declined to follow it and held that 'nervous shock' in the Act is confined to a recognisable psychiatric illness or disorder."

His Honour then went on to say:  "His Honour's analysis is, with respect, persuasive and I would certainly follow it if I considered that I were at liberty to do so.  However, in my opinion the approach in Ferguson and Kazakoff has been endorsed by the Court of Appeal in MR v Webb [2001] QCA113.  This decision was not referred to by Byrne SJA in his reasons and was presumably not cited to him."

Judge McGill, in paragraph 18, later went on to say:  "It seems to me therefore that in this decision the Court of Appeal specifically rejected the argument which Byrne SJA has endorsed and that the decision therefore stands as Court of Appeal authority to the contrary."

The decision to which his Honour there referred was the case of MR v Webb.  His Honour concluded, in paragraph 19, by saying:  "I am of course bound by a decision of the Court of Appeal.  In my opinion that Court has ruled that mental or nervous shock in the Schedule to the Act is not confined to a recognised psychiatric illness or disorder.  The decision to the contrary in RMC and NAC [Super] was, in my opinion, per in curium.  It follows that the absence of evidence of a diagnosable psychiatric disorder is not an impediment to my making an award under the heading of 'Mental or Nervous Shock'."

Consistent with the approach adopted by the Court of Appeal and by his Honour Judge McGill, I intend to proceed on the basis that it is not necessary to show a recognisable psychiatric illness to be entitled to compensation for mental or nervous shock under the Act.

In this case, the amount claimed - the percentage claimed for this injury is ten per cent.  Pursuant to the Schedule, Item 31, mental or nervous shock [minor] has a prescribed percentage range of two per cent to ten per cent.  The amount claimed is at the top end of this category.

It is clear from the report of Dr McGuire that the psychological trauma that the applicant has suffered as a consequence of the assault, is minor.  That can be discerned from page 4 of her report.

Dr McGuire expressed the opinion that:  "Essentially he has had sleep troubles, avoidant behaviour and hyper-vigilance.  I believe that the psychological trauma is minor.  I don't believe that he fulfils any of the diagnostic criteria for a diagnosis of a psychological or psychiatric nature.  In particular, he does not exhibit post-traumatic stress disorder, although exhibits two or three symptoms of the condition."

Also, of some relevance in my opinion, is the fact that the applicant has shown no interest in attending counselling, although I note here that Dr McGuire doubts that such counselling would be beneficial.  I do not know whether that's because, in her opinion, it simply would not be helpful or whether that conclusion is based somewhat on the attitude of the applicant.

Dr McGuire further notes that the applicant has been prescribed medication which he has not taken.  In my view, whatever the state of the claimant, it has been to an extent exacerbated by his own behaviour.  It has been submitted on his behalf that he is a young man and has displayed difficulties in respect of insight and social interaction.  This might go some way to offering an explanation concerning counselling and medication, but in my view it does not provide a total excuse.

Having regard to the claimant's own behaviour concerning this injury, and also the fact that I do not consider that the symptoms as described by Dr McGuire would justify it laying at the top end of the range for minor mental or nervous shock, I consider that this claim should be discounted to five per cent. Resulting in an amount of $3,750.

Pursuant to Section 25 sub-section (7) of the Act, I am also required to have regard to any behaviour of the applicant that might have directly or indirectly contributed to the injuries sustained.  There is nothing in the material which would suggest that, save for the matters that I have referred to concerning mental or nervous shock that he, in any way, contributed to the injuries he has sustained and accordingly, I can see no reason to make any further discount.

From the reasons expressed, compensation is determined in the amount of $16,500.