Schalk v Smith[2012] QDC 303

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the Act) for the physical and emotional injuries caused as a result of the actions of the respondent on 13 April 2008.

The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the 2009 Act) which commenced on 1 December 2009.  The transitional provision in section 155 (1)(a) of the 2009 Act requires the application to be determined in accordance with the Act as it was made on 28 January 2010.  This was before the end of two months after commencement as required by section 155(2)(b), it being the earlier of the dates required in that subsection.

On 3 August 2009 the respondent pleaded guilty in the Goondiwindi District Correct to one count of unlawful wounding.  He was sentenced by me on that date to 18 months' imprisonment. The whole term of imprisonment was suspended forthwith for an operational period of 18 months. A conviction was recorded.

SERVICE OF THE RESPONDENT:

Rule 105(1) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR) provides that a person serving an originating process must serve it personally on the person intended to be served.  Rule 27(1) provides that an application must be filed and then served on the respondent at least three business days before the day set for hearing the application.

An affidavit of service filed in these proceedings deposes to serving the respondent on Saturday 18 August 2012 with the originating application, giving him notice the application would be heard on Thursday 23 August 2012 at 4.30 p.m. in the Dalby District Court.

He had been served with the applicant's affidavit on 10 May 2012. The respondent appeared by phone on the required date and confirmed that he had been served with all affidavit material and reports on which the applicant relies.  I am therefore satisfied that he has been served as required.  The respondent advised that he intended to oppose the application because he required time to make a legal aid application for this purpose and had not been provided with a copy of the applicant's updated submission and the previous District Court decisions relied on.

I adjourned the matter for hearing, if necessary by phone, to the Goondiwindi District Court at 4.30 p.m. on 20 September 2012. This would also allow the applicant to clarify aspects that I had raised.

By agreement the application was adjourned to 2 p.m. on 19 September 2012.  The applicant appeared by phone to represent himself.  He wished to say nothing in opposition to the application.

CIRCUMSTANCES OF THE OFFENCE:

The respondent was sentenced on the basis that he, the applicant and another man, had been drinking heavily, individually and together, throughout the day on which the offence occurred, and also on the previous evening when they had been fishing.  The three men were drinking together at the respondent's house at the time of the offence. This included drinking Jim Beam straight out of the bottle.  Some marijuana may also have been consumed.

As the Crown Prosecutor said, the applicant and the respondent had known each other for a number of years prior to the offence.  Consistently with this, the applicant deposed in his affidavit that the respondent was supposed to be his friend. The respondent asked the applicant to leave, the applicant replied he would leave when he had finished his beer.

In my sentencing remarks I described what happened from that point and the basis of the sentence as follows:  "It seems that as the night drew on and at a time after you had asked the complainant to leave, that you obtained a knife and you grabbed the complainant around the neck and having done that, you fell to the floor.  This was in the context that you had been wrestling together at some stage earlier in the evening.  During the time that you were on the floor, or perhaps during the course of the fall, he sustained the wound to his neck.  It is in circumstances where the prosecution accept that you did not deliberately cause the wound but rather, that you were criminally negligent and reckless in your use of the knife, with the result that he sustained the injury. As such, this is a most unusual case of unlawful wounding compared to the general run of these cases that come before the Court."

The factual basis of sentence was consistent with the following submissions by the Crown Prosecutor:  "The complainant replied that he would leave when he had finished his beer. The accused then went into the kitchen.  Ms Fraser left the room and went into the bedroom.  She says that as she left, she saw the accused in the kitchen, standing near the knife block.  The accused then went into the dining room where the complainant was still sitting at the dining room table and grabbed the complainant around the neck from behind.  They fell to the floor, the complainant having been seated at the time.  The accused fell on top of the complainant and there was a struggle between the two men.

Ms Fraser heard, or perhaps felt through the floor, the results of a struggle and then heard the complainant should, 'You stabbed me, you stabbed me.'  She came out of the bedroom and saw the complainant in the living room holding his neck.  She also saw blood on the complainant's hands.  The complainant ran out of the house and he was followed outside by the accused who was still in possession of the knife…" Police later located the knife in three parts, also a little distance down the road from the house."

The Prosecutor also said:  "The Crown accepts the plea on the basis that no malicious intent was formed by the accused as a result of his level of intoxication.  It was more a negligent possession of the knife during the struggle with the complainant."  For completeness, Ms Fraser was the respondent's partner.

I have set out the factual basis of the sentence in some detail because it is different from the way in which the applicant outlines the events in his affidavit which states:  "While I was sitting at a table at the respondent's house at Yelarbon, he came up behind me, grabbed me in a kind of headlock and stabbed me in the right side of the neck with the knife. I did not see the respondent with the knife until he grabbed me.  I fell to the ground and the respondent pinned me down with the knife in my neck.  He released me after his partner came running out and knocked him off me. I ran out of the house.  The respondent chased me with the knife."

I address this application on the factual basis on which I sentenced the respondent, although this is of little consequence, in circumstances where the issue for determination is the quantum of compensation to be awarded to the applicant for the injuries suffered by him because of the indictable offence of unlawful wounding for which the respondent was convicted on the basis of his stabbing the applicant with the knife in circumstances where he was the aggressor.

INJURIES AND MEDICAL REPORTS:

The respondent was sentenced on the basis that, as the Crown Prosecutor said, after police were called, he was taken to the Toowoomba Hospital where he was treated for a three centimetre deep laceration to his neck.  The doctor noted that there was likely to be a scar of some sort and some persisting numbness to the right earlobe.  The nature of his physical injuries are best described in the medical reports.  According to Dr Owen he was first admitted to the Inglewood Hospital with a wound eight millimetres wide by 15 millimetres deep on his right neck, 40 millimetres below his right earlobe on the belly of the sternocleidomastoid muscle.  This was consistent with a stab wound. The applicant complained of numbness to his right ear.

He was haemodynamically stable at all times and blood loss was minimal.  He was treated with tetanus, prophylaxis, intravenous antibiotics.  It is noted that pain relief was declined.  He was transferred to the Toowoomba Base Hospital where, according to Dr Hall, the ENT Registrar, he was reviewed by the ENT team at 10 a.m.

According to Dr Hall, the applicant complained of right neck pain, exacerbated by flexion and numbness of his right ear.  On examination he had a one-centimetre laceration over the upper third of his right sternocleidomastoid approximately four centimetres below his right ear.  His right ear was numb. Ultrasound of his right neck demonstrated a three-centimetre laceration involving that muscle.  There was no evidence of vascular injury, haematoma or foreign body.

He was conservatively treated with intravenous fluids, antibiotics and analgesia.  He was discharged on 15 April 2008, that is, on his third day.  No further ENT follow-up was required.

The applicant's affidavit evidence of 20 May 2011 is that he still had visible small scars on the side of his neck about two centimetres long.  He still has numbness which runs from behind his jaw, below his ear up to and under his ear.  According to him, it feels like it is in the muscle that runs around this area.  As he put it:  "When the injury first happened that area was completely without feeling. It improved over the first year afterwards (but without improvement since then) to the point where it is now an annoying and consistent numbness."

The applicant also refers to two other injuries for which his claim for compensation extends.  These are what he describes as a graze to the side of his head and a small cut on the left wrist near his watchband.  He says that the first occurred when he was running away from the house as the respondent chased him with the knife.  As he was doing this, he stumbled and fell with the result that his hand came into contact with the bitumen.  This is mentioned in each medical report. Dr Owen refers to a small laceration/haematoma to his left scalp area.  Dr Hall describes it as a superficial laceration over this area.

As the applicant says in his affidavit, neither report mentions his wrist injury although he is sure he mentioned it at one of the hospitals.  His evidence is that after the fall, the respondent chased him for about 400 to 500 metres after which he stopped.  At this point the respondent kept waving the knife at him.  He received a small cut when he put his arm up to protect himself.  After this the respondent threw the knife away.

The applicant was reviewed by Mr Fox, a psychologist, on 6 May 2010.  Mr Fox did not observe any overt signs of psychopathology.  He estimated the applicant's intellectual functioning at the lower end of the "average" range.  The applicant reported that his health as a child was unremarkable.  He said he had been employed for most of the time since leaving school in 1990 when he was 15 years.  His work has included working on a tobacco farm, fruit picking and working at a saw mill.  He was off work for approximately 12 months after sustaining an injury in 2004.  He had been out of work for the previous 12 months.  He attributed this to the stress experienced as a result of the injuries he sustained when wounded by the respondent.

He reported not coping well.  As a result, he was drinking alcohol, took time off and lost his job at a saw mill.  He had not been able to find work since.  The applicant acknowledges having a problem with alcohol.  The applicant reports that because of the attitude of others as well as his own emotional distress, he has avoided people and spent most of his time at home.  He reported drinking heavily.  He does not trust people.  He feels "weird" in his head at times.  He now found it difficult to go to sleep.  He initially experienced nightmares frequently but these had diminished.  He panicked at times.  He was also distressed by putting on 25 to 30 kilograms of weight over the previous year.

Application of the MMPI-2 test indicated the applicant is acknowledging unusual experiences, distress and limited resources for dealing with emotional problems. Mr Fox believes that the applicant experienced a degree of reactive depression which may well be related to the injuries he sustained as a result of the unlawful wounding by the respondent.  His report of weight gain, withdrawal and sleeping difficulties are consistent with this diagnosis.  His expression of distrust of people would also be consistent with the reported offences.

Mr Fox believes that the applicant's reported use of alcohol also contributed to his depressed emotional state.  He also believes that psychological/psychiatric intervention would be warranted for both the applicant's current depressive episode as well as his proclivity for alcohol abuse. 

In the applicant's affidavit approximately 12 months later, he agrees the effects on his life of the incident are correctly detailed in Mr Fox's report.  He deposes he is still mistrustful of people.  He notes in this regard that the respondent was supposed to be his friend.  According to him he now only trusts his family.  He says he doesn't have any friends and is nowhere near as outgoing as he used to be.  He does not go into Yelarbon any more.  It is the nearest town 30 kilometres away.

He continues to have trouble finding work.  He still has sleeplessness unless he drinks enough to go to sleep.  He has had no counselling since the incident and is trying to battle through it himself.

THE APPLICABLE PRINCIPLES:

The assessment of compensation is governed by Part 3 of the Act.  Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence: JMRoboSRR v. Hornsby [2009] QDC 147 per Dearden DCJ at [6]. "A personal offence is an indictable offence committed against the person of someone: Section 21 of the Act.  An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule 1 of the Act prescribed under a regulation: Section 20 of the Act.

An award of criminal compensation under the Act does not invoke the principles applicable to common law damages: Section 25(8)(a) of the Act.  It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled: Section 22(3) of the Act.  A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000: See section 25(2) of the Act and the Criminal Offence Victims Regulation 1995 (QLD) (the Regulation) section 2; See also Riddle v. Coffey (2002) 133 ACrimR 220; [2002] QCA 337 at [12].

An award for compensation must be made by reference to the compensation table which lists 36 different types of injury, giving each a percentage or range of percentages of the scheme maximum: section 25(3)-(4) of the Act.  In deciding the amount of compensation to be paid for an injury specified under the Regulation, the Court is limited to make an order for the prescribed amount.  If the injury does not come within those itemised in the compensation table or specified under a Regulation, then the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table: Section 25(6) of the Act.

Section 22(4) of the Act requires compensation under the section to be calculated by assessing the injury as or similar to an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table: Riddle v. Coffey (2002) 133 ACrimR 220 at 223; [2002] QCA 337 at [15] applying R v. Ward; ex parte Dooley [2001] 2 Qd R 436 at 438, 440.

It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in the table on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases: R v. Ward; ex parte Dooley [2001] 2 Qd R 436 at 440.

Section 26 of the Act, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication: Riddle v. Coffey at 224; and at [18]; JMRoboSRR v. Hornsby at [6].  However, it does not discourage a Judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by section 25(3) of the Act and Ward: Riddle v. Coffey at 224; and at [18].  Accordingly, where it is practical to make separate assessments under each applicable item in the table, whilst at the same time avoiding duplication, that course should be adopted: Wren v. Gaulai [2008] QCA 148 at [24]; Hornsby at [6].  However, if an injury that is best described in one item of the compensation table is instead assessed together with another injury under another item, in order to avoid duplication it may therefore be necessary to make an adjustment to cater for the differences between the ranges or maximum for each item: Wren at [29]; Hornsby at [6].

Ultimately, the Court should ensure that there is compliance with the use of the methodology proscribed by section 25 of the Act which is mandatory: Wren at [22]; Hornsby at [6].

Section 25[7] of the Act provides that in deciding whether an amount or what amount should be ordered to be paid for an injury, the Court must have regard to everything relevant, including, for example, any behaviour by the applicant that directly or indirectly contributed to the injury.  In Zaicov & McKenna v Jones [2001] QCA 442 Holmes J (with whom McMurdo P and Williams JA agreed) held at [33] that section 25(7) comes into operation at the time when the amounts to be paid for the respective injuries are to be assessed and not at a latter stage when the total amount payable under the order is being determined.  That is to say, it is in determining the percentage allowed for each injury that the court must have regard to relevant matters, including contribution.

The issues of fact on this application must be decided on the balance of probabilities: Section 30(2) of the Act.

THE APPLICANT'S SUBMISSIONS:

In the written submissions on behalf of the applicant, it is argued that the applicant has suffered the following injuries and should be compensated on the following basis:

Therefore, an award is sought of 12 - 18 per cent of the Scheme maximum which is $9,000 - $13,500.

The written submissions suggest that the compensation for item 1 is sought on the basis of a superficial laceration/haematoma over the left side of the applicant's scalp. The claim under item 27 extends to a one centimetre scar to his wrist in addition to the visible small scars on the side of his neck. The claim for compensation under item 31 for minor mental or nervous shock makes particular reference to the applicant's significant trouble in trusting people, his social withdrawal and sleeplessness.

ASSESSMENT:

I am satisfied on the balance of probabilities the applicant suffered the physical and psychological injuries documented in his affidavit and Mr Fox's report as a result of the indictable offence of unlawful wounding committed against his person by the respondent on 13th April 2008, with the exception of the superficial laceration/haematoma over the left side of his scalp and the one-centimetre scar to his wrist.  I am satisfied that those injuries involved a stab wound, bodily scarring and mental or nervous shock.

ITEM 1 - BRUISING/LACERATION ETC (MINOR/MODERATE)

ONE PER CENT - THREE PER CENT:

This aspect of the claim is based on the superficial laceration/haematoma over the left-hand side of the applicant's scalp caused when he fell and grazed the side of his head on the bitumen after he was chased from the house by the respondent.  Although the respondent was still holding the knife, the unlawful wounding offence to his neck was complete at that time.

Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by the applicant because of that offence.  Therefore, in this case, the applicant may be compensated for injuries suffered by him because of the unlawful wounding offence for which the respondent was convicted.

As said by Holmes JA, with whom Jones and Mullins JJ agreed, in SAY v AZ ex parte A/G (Qld) at [22]: "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."

The superficial laceration/haematoma over the left side of the applicant's scalp caused when he fell after he ran from the house was not an injury to which the unlawful wounding offence materially contributed.  As indicated, the offence was complete. The injury was in no way attributable to that offence. During argument this was accepted by Ms Glanville on the applicant's behalf.  Accordingly it is not compensable under the Act.

ITEM 24 - GUNSHOT/STAB WOUNDS (MINOR) -

SIX PER CENT - 10 PER CENT

In this case the stab wound suffered by the applicant had the consequence that at the time of swearing his affidavit three years later, he still had numbness running from behind his jaw, below his ear, up to and under his ear.  Dr Hall confirms that on admission to the Toowoomba Base Hospital his ear was numb.  The applicant's evidence is that when the injury first happened his ear was completely without feeling.  Although it improved over the first year there had been no subsequent improvement.  He describes it as an annoying and consistent numbness.

Given this continuing numbness associated with the stab wound is a consequence specifically attributable to the unlawful wounding offence, I assess and award at six per cent of the Scheme maximum for this item of the compensation table.  I note that Ms Glanville's submission was for an award in the range of three to five per cent of the Scheme maximum.  However, that is below the six per cent starting point for an award in respect of this item.

I have been assisted in coming to a view that this award should be in the sum of $4,500 by reference to the assessment at a level of six per cent for a minor wound by Baulch SC DCJ in Simpson v Escott, unreported, No. 240 of 2009, 26 March 2012.

ITEM 27 - FACIAL DISFIGUREMENT OR BODILY SCARRING MINOR/MODERATE) - TWO PER CENT - 10 PER CENT

For the same reason that I have concluded that the superficial laceration/haematoma over the left side of the applicant's scalp was not compensable under the Act because it occurred when the appellant fell after he had run from the house and when the unlawful wounding offence was complete, I consider that the one centimetre scar to his wrist is also not compensable.

The scar derives from a small cut to his left wrist after he had picked himself up from the fall and was seeking to protect himself from the respondent who was waving the knife at him.  This also was not an injury to which the completed unlawful wounding materially contributed.  It was, in no way, attributable to this offence. 

Therefore, the claim can only be based on the visible small scars on the side of the applicant's neck which are about two centimetres long.

On the basis on this description of his bodily scarring, I assess an award at four per cent of the Scheme maximum for item 27 of the compensation table; this is $3,000.

In coming to this decision, I have had regard to the same assessment by Dearden DCJ in respect to a four centimetre by two centimetre scar in Ramaiya v Tanner [2012] QDC 111.

ITEM 31 - MENTAL OR NERVOUS SHOCK (MINOR) -

TWO PER CENT - 10 PER CENT

In JS -v- Graveur [2012] QCA 196 at [20] Muir J with whom Fraser and Gotterson JJA agreed, accepted the accuracy of the analysis of Byrne SJA in RMC v NAC [2012] 1 QdR 395, that, "Nervous shock" in the Act means a recognisable psychiatric illness or disorder in preference to the different view of Thomas JA in R v Kazakoff, ex parte Ferguson [2001] QdR 320. His Honour also accepted that, "Mental shock" and "nervous shock" are interchangeable expressions.

On the basis of Mr Fox's evidence, I am satisfied that the respondent's conduct in unlawfully wounding the applicant was the material cause of the reactive depression which he has diagnosed the applicant as suffering from.  Based on my experience I also find that reactive depression is a recognisable psychiatric illness or disorder which is compensable as mental or nervous shock within the meaning of those words in the Act.

At the time of swearing his affidavit, the applicant had been suffering the symptoms of this disorder for three years.  These symptoms were distrust of people with associated social isolation.  He had initially experienced nightmares but these had diminished over the two years before he saw the psychologist.  At the time of the consultation he had also experienced significant weight gain, consistent with the diagnosis.  There is no evidence as to whether this was still an issue when the applicant gave his affidavit a year later.

In the written submissions in support of the award of compensation, reliance is placed on the cost of future medication and treatment of these symptoms.  However, as indicated, an award of criminal compensation does not invoke the principles applicable to common law damages. Further, there is no evidence as to what this cost may involve in circumstances where, despite Mr Fox's opinion that psychological/psychiatric intervention would be warranted.  The applicant has sought no counselling and is trying to battle through it himself.

Given that this depression had persisted for three years at the time the applicant swore his affidavit, and was likely to persist indefinitely, I consider it is appropriate to assess it at the top of the range submitted on behalf of the applicant for minor mental or nervous shock.  In these circumstances I assess an award of compensation at five per cent of the Scheme maximum; this is $3,750.

SECTION 25(7) OF THE ACT - CONTRIBUTION

In SAY v AZ Ex Parte A/G (Qld) at [22] Holmes JA said:

"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."

As indicated, this includes any behaviour by the applicant that directly or indirectly contributed to the injury.  I conclude that there was nothing in the applicant's actions on 13 April 2008 which contributed to the bodily injuries or mental or nervous shock that was suffered by him.  He did not in any way directly or indirectly contribute to his injuries.  His previous dealings with the respondent were those of a friend.  He did nothing that could be considered any kind of provocation, nor can the circumstances surrounding the offence in any way be construed to involve behaviour or prior conduct which might somehow have been contributory to what happened to him.

The fact that he had been drinking heavily and did not immediately respond to the respondent's request that he leave, in order to finish his beer, was not such behaviour, especially when the respondent's subsequent conduct was to obtain a knife and grab the applicant around the neck while holding it with the consequence that the wounding occurred.  There is no requirement for any further allowance to be made or any lower percentage of compensation to be fixed under section 25(7) of the Act for this reason.

However, regard must be had to whether this is necessary because Mr Fox opines that his reported use of alcohol also contributed to the depressed emotional state.  The applicant acknowledges that he has a problem with alcohol, with his drinking having markedly increased from the age of 18 years.  He would have been 35 years of age when consulting Mr Fox.  However, there is no evidence that this problem had caused him to experience any degree of reactive depression prior to the offence committed by the respondent against him.  Rather, there is a suggestion that he drank alcohol to relieve some of the symptoms of his disorder, e.g. sleeplessness.  In this way, the disorder contributes to his continued excessive use of alcohol which, in turn, impacts on the disorder.

Even if it is assumed that his use of alcohol predisposed the applicant to develop this disorder, if it was not for the offence, the disorder would not have been triggered in circumstances where he had not previously experienced it; and further, the disorder having been triggered, it was the disorder itself which exacerbated his use of alcohol with the consequential impact on the disorder.

Therefore, I find there were no other factors which contributed to the mental or nervous shock suffered by the applicant and for which some allowance must be made or which requires a lower percentage of compensation to be fixed.

CONCLUSION AND ORDERS:

Accordingly, I assess compensation in terms of compensation table as follows:

Therefore, the total assessment is $11,250.

I order the respondent pay to the applicant the sum of $11,250 by way of compensation pursuant to section 24 of the Act for injuries sustained as a result of the offence of unlawful wounding which led to the conviction of the respondent in the District Court at Goondiwindi on 3 August 2009.  That is my order.