DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   Trudy Louise James (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged injury including bodily injury and mental or nervous shock she sustained arising out of the criminal conduct of Peter Gabogna (“the respondent”), who was convicted by the District Court at Stanthorpe on 14 September 2006 for the offence of unlawful wounding of the applicant on 13 March 2006.

2. [2]
   The application for compensation is made pursuant to section 24 of the Act and is supported by the following material:

1. (a)
   Originating application filed 11 February 2009;

2. (b)
   Affidavit with exhibits of the applicant sworn 5 December 2008; affidavit with exhibits of the Debbie Richardson, paralegal, sworn 12 December 2009; affidavit with exhibits of Dr Barbara McGuire, Psychiatrist, sworn 4 December 2008 all filed in this court on 11 February 2009;

(c) Affidavit of Service of David Francis Frost sworn 4 March 2009 filed in this court on 16 March 2009.

Facts:

3. [3]
   Throughout 13 March 2006 the applicant was subjected to verbal abuse by the respondent without provocation. Later in the evening, the applicant walked into the respondent’s room and spoke with him. She then walked out of the bedroom with the idea of going to bed.

4. [4]
   As the applicant got out of the bedroom doorway she felt a blow to the rear of her head towards the left side. She immediately turned to her left and raised her left arm. She was facing the respondent and he had a steel baton in his right hand. He continually moved his right arm in a striking motion and each time he moved his arm she was hit by the steel baton. She placed her left arm above her head in an attempt to shield herself and was struck approximately five times on the left side of her head and left arm. She recalls falling to the floor and then hearing the respondent calling the Ambulance and Police. While she was lying on the floor she recalls being hit one more time on the right side of the head by the respondent but cannot recall what he used on this occasion. She then recalls having something placed over the top of her and later being woken and placed in an ambulance.^[1]

Applicant’s injuries:

5. [5]
   The applicant claims compensation for both physical and psychological injuries suffered by her arising out of the respondent’s criminal conduct.

Physical injuries:

6. [6]
   In a medical report dated 1 June 2006 being “Exhibit D” to the affidavit of Debbie Richardson, Dr Conrad Morze states that he attended the applicant on 13 March 2006 and she presented with the following injuries:^[2]

“Her left arm was markedly bruised and swollen with bruising on the ulna aspect of her forearm and the distal radial aspect of her left forearm.  She had marked swelling on the dorsum of her hand.  She also sustained a 1 cm laceration to her left hand and a 2 cm laceration to her left forearm on the dorsal surface.  Her right arm was tender along the ulna surface and also had a tender proximal thumb on the dorsal surface of her hand.

Trudy suffered multiple head wounds. She sustained a large 15 – 20 cm laceration on her left forehead.  She sustained a second laceration to her left occipital area.  She sustained a third laceration to her occipital area of her head.  She sustained a fourth laceration to her right parietal area of her head.  This fourth laceration was further explored and found to involve a fracture to her skull.”

Additional investigations were carried out and revealed:

“X-Rays of her left hand showed a fracture of the mid-shaft of the first metacarpal with gross displacement.

Subsequent CT scan at Toowoomba Hospital demonstrated a depressed fracture in the right parietal bone which was indenting on the parietal lobe.  It did not demonstrate any significant haemorrhage although a small amount of air could be noted in the subdural space.”

It was Dr Morze’s opinion “that Trudy James sustained serious bodily injury on the evening of the 13^th March 2006, which required the prompt and urgent attention by a medical doctor”.

7. [7]
   A summary of the applicant’s physical injuries was provided by Dr Jeff Webster, Neurosurgery Fellow of the Department of Neurosurgery, Princess Alexandra Hospital, in his report of 24 October 2007 in the following terms:^[3]

“The injuries documented were:

1. compound depressed facture right parietal skull

2. compound fracture left 2^nd metacarpal

3. post concussion syndrome

4. multiple soft tissue injuries left parietal, right frontal, right parietotemporal”

Dr Webster further stated:

“The injuries are consistent with the alleged mechanism of injury. The injuries would involve more than one application of blunt trauma. The injuries would be associated with permanent disfigurement particularly the depressed skull fracture and the multiple lacerations as outlined in the above report.”

8. [8]
   It is also noted in an undated report from Dr Jason Patel of the Orthopaedic Outpatient Department that apart from her serious head injuries the applicant suffered a “non displaced facture of her proximal phalanx to the middle finger; this received no operative management and was simply buddy strapped.”^[4]

9. [9]
   A further medical report from the Princess Alexandra Hospital Neuro Psychological Department dated 29 June 2006 contains the following information:

• The applicant “underwent a brief assessment of cognitive memory and executive functioning on 07.06.06”. There were several physical symptoms the applicant reported that have been present since the incident including, “reduced hearing in her left ear, difficulty picking up objects with her left hand, episodes of dizziness and head spins … occasional headaches and motor weakness in her legs. Cognitive symptoms included distractibility when studying, difficulty recalling information she has read, difficulty transferring written instructions into action and difficulty with written comprehension.”

• “Emotionally she reported feeling optimistic about the future but frustrated with her current living arrangements. She reported night time wakefulness but no changes in her mood, appetite or interests”.

“Results of Assessment”:-

• “Overall she performed within expected limits on the majority of cognitive domains assessed. Her current level of functioning on tasks assessing general attention, verbal fluency, visuospatial processing, visual recall and executive functioning fell within the average to above average range and were consistent with premorbid estimates of functioning. She performed particularly well on tasks of psychomotor speed, categorical verbal fluency, verbal immediate and delayed recall. On this occasion Trudy appears to have made an excellent cognitive recovery and shows no evidence of residual deficits as a result of her injuries. Trudy performed within the normal range for self-reported symptoms of depression and stress however she performed within the moderate range for anxiety. Ongoing management of anxiety symptoms would be recommended.”

“Mental or nervous shock”:

10. [10]
    The applicant also claims compensation for psychological injury suffered by her as a result of the index assault by the respondent. The symptoms of this injury are detailed in a report by Dr Barbara McGuire dated 2 April 2008^[5] having examined the applicant on “31 March 2008” two years post incident.

11. [11]
    Dr McGuire reported that the applicant has described the ‘psychological effects of the incident’ on her in the following terms:^[6]

• “She has sleep troubles”;

• “She experiences security fears” and “is quite convinced that [the respondent] will come and harm her”;

• “She leads a very restricted social life”;

• “She felt very concerned about her daughter being kept from her”; and “is now very anxious about the child and over protective”;

• “She is hypervigilant”;

• “She doesn’t experience nightmares but she does have flashbacks when she sees people who look like him”;

• “She has an exaggerated startle reflex”.

12. [12]
    Dr McGuire further states under “Psychiatric Disorder” that the applicant “…gives a history of posttraumatic stress disorder. [The applicant] described agitation, panic attacks when she hears raised voices etc. I consider that she demonstrates the condition to a moderate degree. In addition she has a history of substance abuse, namely alcohol.”^[7]

13. [13]
    In an addendum report^[8] Dr McGuire states that the index assault by the respondent “is the sole cause of her posttraumatic stress disorder. She had a history of alcohol abuse prior to the offence but had otherwise had not displayed psychiatric abnormality.”

What is “mental or nervous shock”?

14. [14]
    The recent decision of RMC v NAC [2009] QSC 149 revisited this question and what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed the legal history of the condition in paragraphs [25] to [37] of his judgment and ultimately came to the conclusion in paragraph [38] thereof that:

“Nervous shock” in the Act is confined to a recognisable psychiatric illness or disorder”

Causation:

15. [15]
    The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensable injury arising out of those offences has been the subject of much judicial consideration both in respect of applications under the Criminal Code 1899 (Qld) (“the Code”) and under the Act which repealed Chapter 65A of the Code. The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been more recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462^[9] by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants where other factors are relevant to and impact upon the causation of the alleged injuries.

16. [16]
    Further to this, her Honour’s comments at paragraph [22] of the judgment are also apposite to the instant case in respect of the principle to be applied, namely:

“The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order. Only those injuries to which the relevant offence has materially contributed will be compensable. If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done. In deciding what amount is payable for a given injury, the court must consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.”

Applicant’s Submissions:

17. [17]
    It is submitted on behalf of the applicant that her injuries fall under the following categories of injury contained in Schedule 1 of the Act, namely:

a) Item 1 – “bruising/laceration etc (severe)… 3%-5%”. The applicant submits an assessment of 4% or $3,000.00 is appropriate under this Item;

b) Item 9 – “Fractured skull/head injury (no brain damage)… 5%-15%”. The applicant submits an assessment of 15% or $11,250.00 is appropriate under this Item;

c) Item 17 – “Fracture/loss of use of finger… 2%-8%”. The applicant submits an assessment of 5% or $3,750.00 is appropriate under this Item which refers to the Applicant’s “fracture of the mid-shaft of the first metacarpal”;

d) Item 17 – “Fracture/loss of use of finger… 2%-8%”. The applicant submits an assessment of 2% or $1,500.00 is appropriate under this Item which refers to the applicant’s “non-displaced fracture of her proximal phalanx to the middle finger”;

e) Item 32 – “Mental or nervous shock (moderate)… 10%-20%”. The applicant submits an assessment of 20% or $15,000.00 is appropriate under this Item.

18. [18]
    In the aggregate sum the applicant claims an award of compensation in the sum of $34,500.00.

Findings on Categories of Injuries

19. [19]
    On the basis of the evidence before me and the submissions made, I find that the applicant is entitled to an award of compensation against the respondent for both physical and psychological injuries she suffered at the hands of the respondent and that such injuries fall within the following categories of injuries contained in the Compensation Table in Schedule 1 of the Act, namely;

1. (a)
   Item 2 – “Bruising and laceration etc (severe)…3%-5%”

I asses the applicant’s compensation in respect of this item in the sum of $3000.00 representing 4% of the scheme maximum payable under schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court from the hospital records and medical reports which confirm the applicant’s extensive bruising and lacerations to her arms and head respectively, caused by her being struck repeatedly with a blunt metal instrument;

2. (b)
   Item 9 – ““Fractured skull/head injury (no brain damage)… 5%-15%”

I assess the applicant’s compensation in respect of this item in the sum of $11,250.00 representing 15% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court which confirms that the applicant “suffered multiple head wounds” resulting in “the right parietal depressed skull fracture” caused by her being struck repeatedly with a blunt mental instrument.  

3. (c)
   Item 17 – “Fracture/ loss of use of finger… 2% - 8%” (“fracture of the first metacarpal”)

I assess the applicant’s compensation in respect of this item in the sum of $3750.00 representing 5% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court which confirms that the applicant suffered “a fracture of the mid-shaft of the first metacarpal with gross displacement”.

4. (d)
   Item 17 “Fracture/loss of use of finger… 2%-8%” (“non-displaced fracture of the proximal phalanx to the middle finger”)

I assess the applicant’s compensation in respect of this item in the sum of $1500.00 representing 2% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court which confirms that the applicant suffered “a non displaced fracture to her proximal phalanx to the middle finger; this received no operative treatments and was simply buddy strapped”.

5. (e)
   Item 32 - “Mental or nervous shock (moderate)… 10%-20%”

I assess the applicant’s compensation in respect of this item in the sum of $15,000.00 representing 20% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court from the hospital reports and Dr Barbara McGuire’s reports which confirm that the applicant has suffered a “post-traumatic stress disorder” as a result of the severe beating she received at the hands of the respondent which Dr McGuire opines “is the sole cause” of her condition.

Applicants direct contribution:

20. [20]
    In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

21. [21]
    I refer to the circumstances of the incident as set out in paragraph [4] above and I am satisfied that the applicant did not either directly or indirectly contribute to the injuries he sustained at the hands of the respondent.

Order:

22. [22]
    I therefore order that the respondent pays to the applicant the sum of $34,500.00 by way of compensation for the injuries sustained by the applicant as a result of the index assault.

23. [23]
    In accordance with s 31 of the Act I make no order as to costs.