Wood v Lawrence[2010] QDC 98

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   Jeffrey Norman Wood (“the Applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 for bodily injuries he sustained arising out of the criminal conduct of Paul Christopher Lawrance and Aaron Grant Barr (“the respondents’) who were respectively  convicted by this court at Beenleigh on 4 July 2005 and 1 March 2006 for the offence of assault occasioning bodily harm in company to the applicant on 30 March 2002 at Park Ridge, Queensland.

2. [2]
   Both respondents were respectively served with the application and supporting affidavits, either personally or in accordance with the orders of this court by way of substituted service, but made no appearance at the hearing on 6 July 2009 at Brisbane and the hearing proceeded in their absences.

3. [3]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:

1. (a)
   the applicant’s affidavit sworn 23 April 2008 with exhibits; and the two affidavits of Peter John Saggers, Solicitor, sworn 2 May 2008, all filed in this court on 8 May 2008;

2. (b)
   the affidavit of Luke Hatzipetrou, psychologist, sworn 20 August 2008 and filed in this court on 29 August 2008;

3. (c)
   the affidavit of service of Paul Damian Hogan, licensed commercial agent, sworn 22 December 2008 and filed in this court on 3 February 2009;

4. (d)
   the further affidavit of Peter John Saggers, sworn 3 July 2009 and filed by leave on 6 July 2009; and

5. (e)
   the further affidavit of Paul Damian Hogan, sworn 3 July 2009 and filed by leave on 6 July 2009.

Facts:

4. [4]
   The applicant was born 13 January 1960 and was the victim of an assault occasioning bodily harm at the hands of both respondents on 30 March 2002 at Park Ridge, Queensland, when he was attacked without provocation at first by the respondent Lawrance and then a short time later by both respondents Lawrance and Barr, during the course of which he sustained a number of injuries.

Applicant’s injuries:

5. [5]
   The applicant claims compensation for both physical and psychological injuries suffered by him arising out of the respondents’ criminal conduct. The applicant’s physical injuries are described in the following terms:^[1]

“a laceration of the forehead (extending to subcutaneous fat, that is, penetrating the true skin).

bilateral loin and back tenderness

blood detected on urine analysis.”

Dr Lewis‑Driver further states in that report:

“Mr Wood re-presented to the Logan Hospital Emergency Department again on 7 April 2002 at 1235 hours after experiencing a sudden exacerbation of his abdominal pain and subsequent collapse.  On 5 April 2002 he had had a computerised tomography examination which showed fractures of the 10^th-12^th ribs and an associated fractured spleen.  Consequently, the presentation on 7 April 2002 was presumed to be due to a ruptured spleen.  He was taken to theatre and found to have a ruptured subcapsular splenic haematoma with a large amount of free blood and clot in the abdomen.  A splenectomy was performed.  He was transferred to ICU where he required a blood transfusion and then to the surgical ward where he underwent an uneventful recovery.  He was subsequently discharged on 13 April 2002.”

His initial presentation at the emergency department of the LoganHospital was “on 31 March 2002 at approximately 0100 hours.”

6. [6]
   The applicant also claims for psychological injuries arising out of the index assault.

7. [7]
   The evidence filed in support of the applicant’s injuries is firstly the applicant’s sworn affidavit, referred to above, in which he sets out his description of the injuries, which include:

“8.The injuries I suffered included three broken ribs, a split forehead, bruising and a fractured spleen which later ruptured.

9. My head was stitched and my spleen later removed.

10. As a result of my spleen being removed I spent one week in hospital.

11. I now have injections each five years to prevent infections.

12. I undergo blood tests each two months to ensure that my blood counts are as they
13. should be.

13. I continue to suffer nightmares.  I wake up sweaty and nervous.”

In addition, there are a number of photographs (Annexure “B”) taken by the investigating police officers, which depict the physical injuries the applicant sustained at the relevant time, together with further photographs depicting the extent of the applicant’s “splenectomy” scar.

8. [8]
   The applicant’s solicitor, Mr Saggers, has exhibited to his affidavit (PJS-3) the report dated 11 November 2002 from Dr David Lewis‑Driver, who has described the applicant’s injuries as set out in paragraph [5] above.

9. [9]
   In support of the applicant’s psychological claim, Mr Hatzipetrou has exhibited to his affidavit his report of 15 August 2008 following his examination of the applicant on “23 April and 1 May 2008” i.e., six years post-incident.

10. [10]
    Mr Hatzipetrou’s comprehensive report contains a series of “results” from a number of tests carried out by him of the applicant and his conclusions include the following:

• The applicant’s responses to “six diagnostic criteria … were indicative and consistent with the diagnosis of post traumatic stress disorder”^[2]
• “The diagnostic criteria for post traumatic stress disorder require two or more arousal symptoms to be endorsed.  On this occasion, Mr Wood supported a range of items:

• Having trouble falling or staying asleep.

• Feeling irritable or having fits of anger.

• Having trouble concentrating (for example, drifting in and out of conversations, losing track of a story on television, forgetting what you read).

• Being overly alert (for example, checking to see who is around you, being uncomfortable with your back to a door, etc).

• Being jumpy or easily startled (for example, when someone walks up behind you).”^[3]

• “Mr Wood did present with the required symptoms that are consistent with post-traumatic stress disorder and apparently reach clinical threshold.  These results were somewhat consistent with Mr Wood’s clinical presentation.”^[4]

11. [11]
    Ultimately, Mr Hatzipetrou concludes that “at the time of the offence and following months, the ‘mental or nervous shock’ was evident and likely to be moderately severe.  Mr Wood has and continues to experience trauma symptoms directly related to the offence although the intensity and frequency of the symptoms appeared to diminish.  In light of the current assessment, the ‘mental or nervous shock’ was a direct result of the offence extended over a period of at least twelve months.  The current degree of nervous shock directly related to the offence and experienced by Mr Wood is considered to be mild.  This does not minimise the presence or intensity of the initial nervous shock and symptoms of post-traumatic stress.”^[5]

What is “mental or nervous shock”?:

12. [12]
    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”.

Applicant’s submissions:

13. [13]
    It is submitted on behalf of the applicant that compensation for the applicant’s injuries, both physical and psychological, should be assessed in the following terms:

Findings on categories of injuries:

14. [14]
    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 respondents for both physical and psychological injuries 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 23 – “neck/back/chest (severe) … 8%-40%”

 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 only medical evidence before the court in respect of the applicant’s physical injuries, namely the hospital report from Dr David Lewis‑Driver, which shows that the applicant received moderately severe and painful injuries to his torso with “fractures of the 10^th-12^th ribs and an associated fractured spleen … he underwent an uneventful recovery” after his operation to remove his spleen and was discharged from hospital six days later.

2. (b)
    Item 27 – “facial disfigurement or bodily scarring (minor/moderate) … 2%-10%”

 I assess the applicant’s compensation in respect of this item in the sum of $7,500.00, representing 10% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the photographic evidence exhibited to the applicant’s affidavit, which shows the extent of his facial scarring (forehead) and the significant midline scar as a result of his splenectomy.

3. (c)
    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 representing 20% of the scheme maximum payable under Schedule 1 of the Act based upon the applicant’ own evidence and the medical evidence before the court, namely Mr Hatzipetrou’s psychologist report, in particular where he says that based upon the applicant’s complaints of symptoms, “at the time of the offence and following months the ‘mental or nervous shock’ was evident and likely to be moderately severe”.

Applicant’s direct contribution to injury:

15. [15]
    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).

16. [16]
    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 respondents.

Whether liability attaches to both respondents:

17. [17]
    Section26 of the Act relevantly provides that:

“(5) A single compensation order may be made against more than one convicted person.”

3. (6)
   If a single compensation order is made against more than 1 convicted person, the order may provide for—

1. (a)
   separate liability of a convicted person scaled according to the person’s direct and material contribution to the injury; or

2. (b)
   joint liability of more than 1 convicted person for an amount payable under the order; or

3. (c)
   both the separate liability mentioned in paragraph (a) for an amount and joint liability for the amount.

7. (7)
   Without limiting subsection (5), if each of more than 1 convicted person directly and materially contributed to injury mentioned in subsection (3)(a) and (b), a court may make a compensation order against each of more than 1 of the convicted persons.”

18. [18]
    In this instance I am satisfied that it is appropriate to make the compensation order against both respondents who participated in the index assault and then it is a question of determining (if possible) the extent to which each of the respondents “directly and materially contributed to injury mentioned in subsection (3)(a) and (b)”,^[6] if there is to be an apportionment of liability between the respondents.

19. [19]
    I am further satisfied on the basis of the material before the court that the “separate liability for each of the convicted persons” should be of equal proportions as there is no evidence before the court which would enable a finding to be made that any one of the respondents “contributed to the (applicant’s) injury” more than the other.

20. [20]
    I therefore find that each respondent is jointly and severally liable for the compensation payable to the applicant caused by their criminal conduct.

Order:

21. [21]
    I order that the respondents or either of them pay to the applicant the sum of $37,500.00 by way of compensation for the injuries sustained by the applicant and caused by the respondents on 30 March 2002.

22. [22]
    In accordance with s 31 of the Act I make no order as to costs.