Pearson v Estate of Mark Stasenes (Deceased)
[2011] QDC 226
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- Unreported Judgment
- Pearson v Estate of Mark Stasenes (Deceased)[2011] QDC 226
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Pearson v Estate of Mark Stasenes (Deceased)[2011] QDC 226
Pearson v Estate of Mark Stasenes (Deceased)[2011] QDC 226
DISTRICT COURT OF QUEENSLAND
CITATION: | Pearson v Estate of Mark Stasenes (Deceased) [2011] QDC 226 |
PARTIES: | JASON EARL PEARSON V ESTATE OF MARK RODNEY STASENES (DECEASED) |
FILE NO/S: | 161 of 2009 |
DIVISION: | Civil |
PROCEEDING: | Application for criminal compensation |
ORIGINATING COURT: | Beenleigh |
DELIVERED ON: | 2 September, 2011 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 1 August 2011 |
JUDGE: | Dearden DCJ |
ORDER: | That the respondent, Estate of Mark Rodney Stasenes (Deceased), pay the applicant, Jason Earl Pearson, the sum of $13,500. |
CATCHWORDS: | Application – criminal compensation – serious assault – loss or damage of teeth – mental or nervous shock |
LEGISLATION: | Criminal Offence Victims Act 1995 (Qld) ss.24, 25(7) and 40(1) Victims of Crime Assistance Act 2009 (Qld) ss. 154 and 155 |
CASES: | Ferguson v Kazakoff [2001] 2 Qd R 320 Michael v Christensen [2010] QDC 157 MR v Webb [2001] QCA 113 Paterson v Chand & Chand [2008] QDC 214 R v Chong ex parte Chong [1999] QCA 314 RMC v NAC [2009] QSC 149 WHG v LJC [2010] QDC 395 |
COUNSEL: | Mr P Saggers, solicitor for the applicant No appearance for the respondent |
SOLICITORS: | Howden Saggers Lawyers, solicitors for the applicant No appearance for the respondent |
Introduction
- [1]Mark Rodney Stasenes pleaded guilty in the Beenleigh District Court on 24 January 2007 before Judge Pack to one count of assaulting the applicant Jason Pearson, a police officer, while he was acting in the execution of his duty. Mark Stasenes was sentenced by Judge Pack to 12 months imprisonment, wholly suspended, with an operational period of two years.[1]
Facts
- [2]As of 31 March 2004, the applicant was a Senior Constable at the Beenleigh Police Station. The applicant was working a late shift, and at around 8.00pm he walked to a nearby Pizza Hut to buy dinner wearing his police uniform. As the applicant waiting in the store, Mark Stasenes and another person said words to the effect “What’s a pig doing all by himself?”. The applicant ordered and then left the store to answer a call on his mobile phone. Mr Stasenes continued to make abusive comments which the applicant ignored.
- [3]The applicant walked to a nearby video store to continue the conversation on the mobile phone. The applicant was outside the video store when Mr Stasenes and his associate walked past and said words to the effect “You fucking maggot”. Mr Stasenes and his associate then laughed and walked away. The applicant noticed that families with children were retuning videos and appeared to have taken offence at the language so called out to Mr Stasenes and his associate and told them to stop. Mr Stasenes and the associate turned and laughed and continued to walk away. They then stopped in the car park and Mr Stasenes “Come over here you fucking maggot. You’re too fucking scared to come over here by yourself.”
- [4]The applicant then walked towards Mr Stasenes and his associate and told Mr Stasenes that he was under arrest for insulting language. Mr Stasenes said “Fuck off”. As the applicant put one hand on the arm of Mr Stasenes to direct him to an area with better lighting, Mr Stasenes pushed the applicant in the chest, causing him to move backwards. As the applicant again tried to take Mr Stasenes’ arm, the applicant felt a blow to the left side of his face in the area of his jaw. There was then a struggle during which Mr Stasenes and his associate said “We’re going to do you. You’re all alone and you’re fucking dead.” The applicant was able to subdue Mr Stasenes with assistance from other police who arrived on the scene. Mr Stasenes continued, after being handcuffed, to struggle and state “You’re fucking dead”. Mr Stasenes was then taken to the watch house where he declined to be interviewed.[2]
Injuries
- [5]The applicant sustained swelling and damage to his teeth which required medical and dental treatment, and (it is submitted) mental or nervous shock.[3]
The Law
- [6]The application in these proceedings was filed on 22 December 2009 pursuant to s 24 of the Criminal Offence Victims Act 1995 (COVA). COVA was repealed by the Victims of Crime Assistance Act 2009 (VOCAA) which commenced on 1 December 2009. The application was filed in compliance with VOCAA ss 154 and 155, and therefore proceeds pursuant to COVA s.24. The application is compliant with the relevant time limit in COVA s 40(1).
- [7]I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214.
Compensation
- [8]Mr Saggers, who appears for the applicant, seeks compensation as follows:
(1)Item 5 – Loss or damage of teeth – 1%-12%
- [9]The applicant, it is submitted, suffered loss and/or damage to a series of teeth on the left hand side of his mouth. Tooth 36 was surgically removed on 25 May 2004, tooth 35 had an emergency extirpation of pulp on 7 June 2004, first stage root canal treatment on 15 June 2004, second stage root canal treatment on 22 June 2004, and bridge preparation and a light post and composite resin core on 25 June 2004. In addition, two porcelain crown preparations were placed on teeth 24 and 27 on 6 June 2004 and a three unit porcelain bridge preparation was placed on teeth 35 to 37.[4]
- [10]It is submitted that the loss or damage of teeth should be assessed at 10% of the scheme maximum ($7,500). I accept this submission and accordingly award $7,500 pursuant to item 5.
(2)Item 32 – Mental or nervous shock (moderate) – 10%-20%
- [11]The applicant was examined by Istvan Schreiner, clinical and forensic psychologist, on 27 January 2010 and a report was provided dated 1 February 2010.[5]
- [12]Mr Schreiner concluded that:
“On the clinician administered post traumatic stress disorder scale, [the applicant] reported mild re-experiencing symptoms of his trauma, mild avoidance strategies, and mild arousal symptoms [but] overall, [the applicant] reported no impairment as the result of the trauma he experienced…Although subjectively [the applicant] denied any trauma related emotional reactions, during the structured interview [the applicant] revealed clear symptoms of trauma related stress. The number of symptoms, however, fell outside the DSM-IV-TR diagnostic criteria of post traumatic stress disorder.
[The applicant] presented as an emotionally resilient individual.
…
[The applicants] history and current and symptoms suggest that he did suffer from a moderate nervous shock at the time of the assault but no lasting emotional impact was observed.
…
[The applicant] also presented with current symptoms of traumatic stress, but he was unaware that such symptoms were related to his assault.”[6]
- [13]Mr Saggers submits that the report from Mr Schreiner of sub-clinical trauma related stress, not amounting to post traumatic stress disorder, is still sufficient to ground an assessment of “mental or nervous shock” pursuant to COVA. In particular, Mr Saggers, while highlighting the conflict between Thomas JA in Ferguson v Kazakoff [2001] 2 Qd R 320, para 17 and Byrne SJA in RMC v NAC [2009] QSC 149, para 38, argues that this court should follow the approach set out by Wilson J in MR v Webb [2001] QCA 113, para 15 and compensate the applicant in these proceedings, although he has not suffered a diagnosed psychiatric illness. Both McGill DCJ in Michael v Christensen [2010] QDC 157 and Irwin DCJ in WHG v LJC [2010] QDC 395, have held that the term “mental or nervous shock” as used in COVA is not confined to a recognisable psychiatric illness or disorder.
- [14]I accept these submissions and conclude that the applicant suffered a compensable “mental or nervous shock” injury. In my view, however, the mental or nervous shock suffered by the applicant is more appropriately dealt with by an order pursuant to item 31 (mental or nervous shock (minor)), namely at 8% of the scheme maximum ($6,000). Accordingly I award $6,000 pursuant to Item 31.
Contribution
- [15]I do not consider that the applicant has contributed in anyway to his own injuries, either direct or indirect.[7]
Survival of Cause of Action
- [16]Mark Stasenes died from drowning as a result of a motor vehicle accident on 26 June 2009 at Urunga, New South Wales. Accordingly these proceedings have been brought in the name of the Estate of Mark Rodney Stasenes (Deceased). The Public Trustee (Queensland) has no record of administering any estate for Mark Stasenes, nor has any application been made for probate on Letters of Administration.[8]
- [17]However, the applicant’s cause of action survives the death of the respondent. Such an application can proceed in the absence of any person representing the estate of the deceased respondent (there has been no representative of that estate appearing in these proceedings), given that it has been established that the deceased left neither a will nor an estate of any substantial value.[9]
Order
- [18]I order that the respondent Estate of Mark Rodney Stasenes (Deceased) pay the applicant Jason Earl Pearson the sum of $13,500.
Footnotes
[1] Exhibit PJS3, affidavit of Peter Saggers sworn 7 December 2009
[2] Exhibit PJS2 (submissions on sentence), pp 1-4 1-5
[3] Exhibit PS2, p 1-5, affidavit of Peter Saggers sworn 7 December 2009
[4] Exhibit PJS4 (report of Dr Tom te Kloot, dental surgeon), pp 1-2, affidavit of Peter Saggers sworn 7 December 2009
[5] Exhibit IS1, affidavit of Istvan Schreiner sworn 26 February 2010
[6] Exhibit IS1, pp 9-10
[7] COVA s 25(7)
[8] Affidavit of Peter Saggers sworn 11 August 2011, paras 2-5
[9] Affidavit of Peter Saggers sworn 11 August 2011, paras 2-5; and see R v Chong ex parte Chong [1999] QCA 314 per de Jersey CJ, p 3, Demack J, p 32