DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   James Arthur Jurgensen (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 for bodily injury he sustained on the 22 February 2007 at Blackbutt in the State of Queensland arising out of the criminal conduct of Daniel William McDonnell (“the respondent”) who was convicted by the District Court at Kingaroy on 6 February 2008 for causing grievous bodily harm to the applicant on the said 22 February 2007.

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

1. (a)
   The affidavit of the applicant, sworn 23 November 2009;

2. (b)
   The affidavit of Deborah Frecklington, Legal Practice Director, sworn 23 November 2009;

3. (c)
   The affidavit of Steve Morgan, Forensic Psychologist, sworn 11 September 2009;

All filed in the Kingaroy District Court on 23 November 2009; and

4. (d)
   The affidavit of Service of Elizabeth Daniels, Law Clerk, sworn 22 January 2010 and filed 22 January 2010.

3. [3]
   The respondent was served personally with the application and supporting documents on 18 January 2009. By order of his Honour Judge Koppenol on 31 January 2011 the matter was transferred to Brisbane for hearing. The respondent did not appear at the hearing which proceeded in his absence on 18 August 2011.

Background Facts:

4. [4]
   The respondent was the boyfriend of the daughter of the applicant’s defacto partner. The applicant had been in a relationship with his partner for 12 months and the respondent moved in with the daughter approximately 6 months into that relationship.

5. [5]
   On 22 February 2007, the applicant arrived home heavily intoxicated and was told by his partner that the relationship was at an end. The applicant told his partner to call the police and have them remove him from the property. He held a telephone in his hand and when asked by his partner for the phone to make a call, he threw it on the ground thereby breaking it. Soon after, the respondent came into the house and the applicant invited him to fight him and a consensual fight commenced between the applicant and respondent. They both ended upon the floor inside the house kicking and punching each other during which the respondent threw a chopping board at the applicant and missed. The melee continued outside with kicking and punching from both applicant and respondent. The applicant threw a pot of dirt at the respondent and a large rock at an intervening party, Mr Gage, both of which missed. Mr Gage threw a “half full beer stubby” at the applicant which missed and the applicant pursued Mr Gage. The respondent armed himself with a shovel and pursued the applicant, hitting him over the head. The applicant was felled by the blow which caused the grievous bodily harm. Whilst the applicant was on the ground, the respondent hit him again in the back with the shovel. The applicant got to his knees and then lay back down in the foetal position and did not move thereafter.

Applicant’s Injuries:

Physical Injuries:

6. [6]
   The applicant was transported to Nanango Hospital by ambulance and was then transferred to the Royal Brisbane Hospital. He was attended by Dr Shannon Springer. In his report dated 22 March 2007, Dr Springer stated:^[1]

“The following injuries were documented:

1. Right-sided mastoid fracture with unknown fluid leak which was later confirmed to be cerebrospinal fluid.

2. Conductive hearing loss on the right side.

3. Multiple abrasions.

The management for the above injuries was conservative monitoring and oral antibiotics.

On 5 March 2007 the patient developed a right-sided grade IV facial palsy likely due to swelling and injury from his initial injuries. After I had examined him on 5 March 2007 our further management was referral to have CT scans of his temporal bones and electrophysiology studies, and oral steroids in an attempt to preserve the nerve. I have not examined the patient after this date to determine long term facial nerve damage….

…. If these injuries were left untreated it may have led to hearing loss; permanent facial damage affecting the right eye; speech disturbance.”

7. [7]
   The report of Dr Don Todman, Neurologist, of the Brisbane Clinic dated 5 September 2008, includes:^[2]

“Investigations revealed a fracture of the right mastoid. A CT brain scan was normal. He had multiple soft tissue injuries. He had a transient cerebro-spinal fluid leak. This was treated conservatively.

Following discharged he was very debilitated with pain. He had headaches and spinal pain. He rested at home and mainly took analgesics.

Present Symptoms and Treatment

…..

There have been persistent headaches. These are mainly in the occipital region, but extend throughout the whole head. They occur at least three days per week. Mr Jurgensen was not a headaches sufferer prior to the incident.

There has been persistent neck pain. This is bilateral in the cervical spine and extends into the shoulder girdles and upper limbs. Pain is aggravated by neck movements, postures and activities. He has pain at night with poor sleep.

There has been continuing low back pain. This is in the midline paravertebral regions of the lumbar spine. He also experiences right sciatica. This is aggravated by prolonged sitting as well as bending, twisting or lifting.

There has been loss of sense of smell and taste. There has been bilateral hearing impairment.

He has problems with short term memory and concentration. He is very forgetful of details of conversations and day to day events. He has problems organizing his thoughts and with forward planning.

There has been some change in mood. When he first came home from the hospital he was very angry, with temper outbursts. He was on treatment for a time and these symptoms have moderated.

………….

Examination

The examination showed restricted cervical spine movements by approximately 40° in each range of movement. There was tenderness and muscle spasm bilaterally and spasm over both trapezius muscles.

In the lumbar spine there is reduced forward flexion by 40-50° with tenderness and muscle spasm bilaterally.

Strength, reflexes and sensation were normal in the limbs. There is loss of sense of smell and taste.

………..

Conclusion

… The mechanism injuries include a closed head injury. There was a fractured right mastoid and also a transient cerebro-fluid leak.

The ongoing symptoms include post-traumatic headaches. These are muscle tension type and are occurring frequently. He also has problems with memory and concentration and some temper outbursts. There is sensory loss of smell and taste. To further evaluate this brain injury, I would recommend an MRI brain scan…

The injury to the cervical and lumbar spines represents a chronic musculo-ligamentous strain. Structures that could be affected in this from of accident include muscles, ligaments and facet joints.

…..

There is a permanent impairment referable to this injury. From AMA 5, Table 13.6 the traumatic brain injury is a Class 1 impairment; that is, an impairment exists but is able to perform activities of daily living. This is a 14 percent whole person impairment which is the upper range one to fourteen percent based on the level of symptoms and effects on ADL’s.

The loss of smell and taste represents an olfactory nerve injury. This is a three percent whole person impairment from Table 13.4.

The current symptoms have stabilised and are likely to represent a permanent state of affairs. From AMA 5 Guidelines, Table 15.5, this is a DRE Category 2 injury; that is, clinical history and examination findings are compatible with a specific injury, namely chronic musculo-ligamentous strain to the cervical spine. This represents an eight percent whole person impairment which is the upper part of the range of five to eight percent based on the level of symptoms and effects on ADL’s as well as noting muscle spasm, restricted movements and radicular complaints.

The symptoms will continue to affect Mr Jurgensen in day to day activities and employment. The current level of symptoms will preclude him from any paid employment. Any return to the workplace would be dependent on improvement in symptoms with future treatment.

In the home environment he requires assistance for heavier domestic activities and home maintenance of up to five hours per week.”

In his supplementary report dated 10 September 2008, Dr Don Todman stated:^[3]

“Since my last report Mr Jurgenson has had an MRI brain scan…. The principal abnormality is in the left basal ganglia with a small area of altered signal on the T2 images in the left basal ganglia region. These features are consistent with previous brain trauma and an old hemorrhage. As an incidental finding there is also a lipoma in the left frontotemporal scalp.

……..……

The MRI scan shows evidence of previous brain trauma. It is consistent with features of a traumatic brain injury. Based on the MRI appearances there is no new treatment to recommend…”

Hearing Loss Assessment:

8. [8]
   In respect of the claimed hearing loss, in his report of 22 March 2007 Dr Springer diagnosed the applicant as suffering among other things “conductive hearing loss on the right side” and concluded that “if these injuries were left untreated it may have led to hearing loss; permanent facial damage affecting the right eye; speech disturbance” (emphasis added). An audiology report on referral from Dr Canty of “02.06.09” shows some changes in his hearing “improvement in the high frequencies and deterioration in the lower frequencies.” A diagnosis was made that the applicant has suffered “Both ears - moderate sensorineural hearing loss, with hearing sensitivity worse on the left.”

Assessment of Physical and Psychological injuries as a result of severe traumatic brain injury:

9. [9]
   Mr Steve Morgan, Forensic Psychologist examined the applicant on 12 May 2009. His report dated 9 June 2009 includes the following:^[4]

“A[t] interview, Mr Jurgensen reported the following neurological or physical health concerns – that he associated with the assault:

1. Variable experiences of deafness, describing “heavy flutters” across both ears (he states that his hearing has been subject to audiology tests);

2. A sense of vibration in his right and left legs on occasion;

3. A complete loss of sense of smell;

4. A complete loss of sense of taste;

5. He reported pain all over his body, but particularly problematic in the hips and lower back;

6. Shoulder pain – “popping in and out”; &

7. Neck pain – “popping out”.

Mr Jurgensen reported the following effects, that strike me as of possible neuropsychological effect:

1. Confusion under circumstances of multiple sources of noise;

2. He states that he may be easily confused by people’s conversations “what people say, also describing difficulty with receptive and expressive language;

3. Poor balance (“really bad”);

4. Gross sleep disturbance, with a variable and alternating sleep pattern;

5. Mr Jurgensen reported persistent headaches and migraines that may last up to 3 or 4 days – with the last lengthy migraine stated as being 10-12 weeks prior to interview and with headache reported as daily. He rated recent headaches pain as 5/10 (on a scale of 0-10, where 0 = no pain and 10 = excruciating pain);

6. Poor judgement of movement – being prone to hitting his shoulder on occasion due to misjudging the position of doorways.

…………………………

Prior Head injury and other Head Insults

15.0 Mr Jurgensen reported a prior head injury sustained between the ages of 18 and 20 (he could offer no further detail in this regard). He stated that this occurred when he was thrown from a motorbike that hit a hole in the road – and whereby he landed head-first (he had been the rear passenger). He recalled being rendered unconscious, requiring transfer to the Royal Brisbane Hospital whilst comatose. He stated “I’m not sure how long” that he had been rendered unconscious..

16.0 He described subsequently attended the Brain Injury Rehabilitation unit (BIRU). He estimated that he was finally discharged from hospital, by his recollection, just prior to his 21^st birthday. By that stage, he recalled being “sick of being hospitalised”. He stated “It felt like I was in there for one year.”

17.0 The severity of that head injury was such that he has been provided with a disability support pension for that head injury to date. He has not substantively worked across adult life, other than “helping people out with lawn-mowing” on an informal basis.

18.0 Mr Jurgensen reported that he has been knocked out when fighting in pubs on two occasions, between the initial coma (above) and the assault of 2007. he was unable to recall any further details in these regards……

19.0 Mr Jurgensen reported the following problems prior to the 2007 head injury/assault:

19.1 Short-term memory problems;

19.2 Long-term memory problems;

19.3 Concentration problems;

19.4 Word-finding problems; &

19.5 Difficulties with reading.”

10. [10]
    Mr Morgan conducted a number of psychological assessment tests as a result of which he concluded:^[5]

“52.0 On the basis of the clinical interview, the results of psychometric testing and the available information, I am compelled to the provisional view (by necessity, as collateral expert information on his pre-2007 functioning is limited) that this 2007 assault has likely exacerbated and also extended memory, cognitive, perceptual and cognitive deficits arising from the prior head injury. He reported specific 2007 effects on balance, sleep disturbance and perceptual disturbance particularly – that may reflect the site of the rear head insult. Such impairments have been of further negative impacts in terms of his general functioning.

53.0 I further note that these experiences occurred within the context of regular cannabis use and likely alcohol dependence. He denied any change to his alcohol or cannabis use, post-assault. Whilst Mr Jurgensen believes his alcohol and cannabis helpful in terms of his general functioning and mood stability – psychoactive substances are highly contra-indicated within the context of a head injury.

54.0 On such a basis, I may offer only provisional views, by way of formulation:

54.1 I believe it likely that Mr Jurgensen has sustained a further head injury, with distinct features of effects on his balance, perceptions and sleep disturbance.

54.2 His prior problems with memory, concentration and personal organisation are likely further adversely affected.

54.3 He has experienced some anxiety within a range of social situations, is now transient and lacks essential stability. He also reported irritability and low mood experiences. Such effects meet the criteria for Adjustment Disorder, with Mixed Anxiety and Depressed `Mood (DSM0IV-TR 309.28)

54.4 His use of alcohol and drugs persists and with his pattern of use unhelpful. He meets the criteria for Cannabis Abuse (DSM-IV-TR 305.20) and Alcohol Dependency (DSM-IV-TR 303.90).”

11. [11]
    Mr Morgan made a number of recommendations to assist the applicant in his continuing recovery including his “significant alcohol and drugs treatment needs”.

Applicant’s comments on the general effects the injuries have had on him:

12. [12]
    The applicant’s description of his current symptoms includes the following:^[6]

Causation and Contribution:

13. [13]
    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 Code and under COVA 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 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 arising out of sexual offending but are also of general application.

14. [14]
    Further to this, her Honour’s comments at paragraphs [22] and [23] of the judgment are also relevant in respect of the principle to be applied when assessing the appropriate award of compensation to be made particularly where her Honour states:

“[23] Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of other factors, rather than necessarily a strict process of apportionment. In that exercise, it is legitimate to consider the nature of the other contributing factors. Given that the Act’s scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending.”

Applicant’s Submissions:

15. [15]
    It is submitted on the applicant’s behalf that the physical injuries arising out of the respondent’s criminal conduct fall under the following categories of injury contained in the Compensation Table under Schedule 1 of the Act namely:^[7]

16. [16]
    The aggregate of the amounts claimed total approximately $95,250.00 but as the scheme maximum is $75,000.00 it is submitted that the applicant should be awarded compensation of $49,500.00 after taking into account a contribution factor of 33%.

What is “mental or nervous shock”?

17. [17]
    The recent decision of RMC v NAC [2009] QSC 149 revisited this question and in particular what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed carefully and comprehensively 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”.

18. [18]
    There has been some divergence of opinion among judges following Byrne SJA’s conclusion on point as to the meaning of “mental or nervous shock” and some have come to a contrary view from his Honour on its meaning upholding the previously held view of Thomas JA in Ferguson’s case – with some relying upon the Court of Appeal decision of MR v Webb [2001] QCA 113. With respect, the Court of Appeal in that authority did not embark upon the comprehensive analysis of the topic as did Byrne SJA nor make any definitive interpretation of its meaning. I therefore accept Byrne SJA’s conclusion as to the meaning of the condition which is overwhelming supported by his Honour’s thorough analysis in the paragraphs of his judgment referred to above.

Findings:

19. [19]
    On the basis of the evidence before the court and the submissions made I make the following findings:

1. (a)
   The applicant has sustained a number of bodily injuries and some exacerbation of a psychological condition which would seem to satisfy the criteria of “mental or nervous shock” under s 20 of the Act and is therefore entitled to an award of compensation under s 24 of the Act subject to a number of discounting factors set out hereunder. I make this finding on the evidence contained in the affidavits with exhibits filed herein including those of:

1. (i)
   the applicant himself;

2. (ii)
   Deborah Kay Frecklington; and

3. (iii)
   Steve Morgan.

2. (b)
   I find further that the categories of injury under which the applicant is entitled to an assessment of compensation are as follows:

1. (i)
   Item 1 – “Bruising/Laceration (minor/moderate)…. 1% - 3%”

I assess the applicant’s compensation in respect of this item in the sum of $1500.00 representing 2% of the scheme maximum based upon the applicant’s own evidence and the nature of the injuries he suffered;

2. (ii)
   Item 11 – “Fractured skull (brain damage – severe)…. 25%-100%”

I assess the applicant’s compensation in respect of this item in the sum of $30,000.00 representing 40% of the scheme maximum based upon the applicant’s own evidence and the evidence of Dr Don Todman Neurologist who concludes that although the applicant’s “C.T. brain scan was normal”, the applicant “had a transient cerebro-spinal fluid leak” and a number of consequential symptoms including:

It must be borne in mind however that the applicant suffered a severe

head injury “between the ages of 18 and 20” i.e. in or about 1991

since which time he has been on “a disability support pension” and

had a number of the symptoms of which he now complains, prior to

the index assault as per paragraph 19.0 of Mr Morgan’s report. He has

also suffered other head injuries when “knocked out when fighting in

pubs on 2 occasions” prior to the index assault. (emphasis added).

3. (iii)
   Item 36 – “Loss of hearing (both ears)….. 4% to 50%”

I assess the applicant’s compensation in respect of this item in the sum of $11,250.00 representing 15% of the scheme maximum based upon the applicant’s own evidence and the evidence of Dr Springer and Dr Canty the latter of whom assesses the applicant’s “sensorineural hearing loss” as “moderate”.

4. (iv)
   Item 22 – Neck/back/chest injury (moderate)…. 5% to 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 based upon the applicant’s own evidence and the evidence of Dr Todman.

4. (v)
   Item 32 – “Mental or Nervous shock (moderate)…. 10% to 20%”

I assess the applicant’s compensation in respect of this item in the sum of $7,500.00 representing 10% of the scheme maximum based upon the applicant’s own evidence and the evidence of Mr Morgan who essentially says that the applicant’s conditions relative to this item vis a vis the index assault is an exacerbation of pre-existing symptoms caused by a myriad of issues and lifestyle abuses unrelated to the index assault.

Applicant’s Direct Contribution to Injury:

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 [5] hereof and I find that the applicant contributed substantially to the injuries he sustained at the hands of the respondent in that:

I therefore assess the applicant’s contribution to his own injuries to the extent of 40%.

Orders:

22. [22]
    I therefore make the following orders in the application:

1. (a)
   I assess the applicant’s total compensation for the injuries he sustained on the 22 February 2007 in the sum of $57,750.00;

2. (b)
   I find that the applicant contributed to his injuries to the extent of 40%;

3. (c)
   I order that the respondent pay to the applicant the sum of $34,650.00 by way of compensation for the injuries sustained by the applicant caused by the respondent on the 22 February 2007 at Blackbutt, Queensland.

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