Watson v Poynter[2002] QSC 283

SUPREME COURT OF QUEENSLAND

[1] The Applicant seeks Criminal Compensation under the provisions of the Criminal Offence Victims Act 1995.

[2] She was born on 6 February 1973 and the offences in respect of which she claims compensation against the Respondent were committed on 25 January 1997.

[3] This application was filed on 1 September 2000.  It is thus out of time.  See Jacob v Roberts (2002) QCA 87 (21 March 2002).  The effect of the authorities is that Section 40 of the Criminal Offence Victims Act 1995 requires an Applicant as a condition of a right to recover compensation under the Act to institute proceedings within 3 years.  The Applicant therefore seeks an extension of the limitation period.

[4] The Respondent who did not appear on the hearing was convicted of two counts of assault occasioning bodily harm.  He was sentenced on 21 November 1997 to 2 years imprisonment with a recommendation that he be eligible to be considered for parole after 9 months.

[5] Section 41 of the Act provides as follows:-

41(1)The Limitation of Actions Act 1974, sections 30 and 31 apply to applications mentioned in section 40(1) and (2) with the intention that, on application –

(a)a court may order that the period of limitation under section 40(1) for an application to which the subsection applies be extended under the Limitation of Actions Act 1974, section 31(2); and

(b)the Minister may order that the period of limitation under section 40(2) for an application to which the subsection applies be extended under the Limitation of Actions Act 1974, section 31(2).

(2)The Limitation of Actions Act 1974, sections 30 and 31 apply –

(a)as if the applications mentioned in section 40(1) and (2) were actions for damages for trespass; and

(b)with changes under subsection (1) and all other necessary changes.

I will return to the question of an extension of time a little later in these reasons.  It is clear that the Applicant has satisfied the requirements of s 31(2)(b) of the Limitation of Actions Act 1974.

[6] The Applicant lived in a de facto relationship with the Respondent but they had been separated for about a month prior to the relevant date.  The Applicant had obtained a domestic violence order against the Respondent.

[7] On 24 January 1997 the Applicant was at her aunt’s home at Palm Island and had been drinking rum and coke when she became aware of the Respondent’s presence outside the residence.  She spoke to him outside and when she refused to go with him he grabbed her by the hair and pulled her for some distance before releasing her.  At that point she commenced to walk along beside him and they walked together to the top of a hill.  They both sat down and the Respondent drank some beer.

[8] An argument developed whilst they were there.  The Applicant recalls the Respondent kicking her head and body and saying that he was going to kill her.  The Applicant lost consciousness.  The Respondent it would seem threw her down the embankment.  He informed the police of this the following morning believing that he had killed her.

[9] The Applicant was found in a semi-conscious condition at the bottom of the embankment. 

[10] The Applicant was taken to the Palm Island hospital and there was seen to be suffering from a closed head injury with a resultant reduction of consciousness.  She had abrasions over her face as well as periorbital swelling and bruising and other signs of trauma.  There was a laceration to her left forehead and one to the right pretibial region.  These were sutured. 

[11] There were extensive general abrasions and bruising.

[12] There is a report from Mr. Ryan a psychologist.  He describes the Applicant as having been a traumatised person prior to these events.  He regards her as suffering from post traumatic stress disorder with components of depression, anger and frustration.  The assaults have exacerbated her pre-morbid condition which rendered her more vulnerable to sequelae of the kind that she has suffered than she would have otherwise have been.

[13] There is long history of violence being perpetrated upon her by the Respondent and by others.

[14] Mr. Ryan thinks that her condition will persist.  He has recommenced psychotherapeutic intervention and provides a cost of this.

[15] The Applicant confirms what is contained in Mr. Ryan’s report.  In her affidavit she speaks of suffering headaches and having a dent on both sides of her skull above her ears. 

[16] There is a report of Dr. Boyce, a consultant neurologist, who says that the Applicant’s headaches are of a migrainous type and are the consequence of the incident.  He ascribes an impairment of 5% of the whole person to these.

[17] Claims are made under three items in the schedule.  These are for bruising, lacerations (severe) apart from the injuries to the head and fractured skull/head injury.  So far as the first claim is concerned I think that it would be more appropriate to describe these as moderate and I assess compensation in the sum of $2,250.00 for this.  There is a claim for compensation under item 11 for fractured skull – head injury, brain damage (severe).  I will assume that Dr. Boyce’s opinion is a sufficient basis for dealing with the claim within this category and would allow $20,000.00 under this head.

[18] I accept that the final item claim for mental or nervous can properly described as severe and I would ascribe $20,000.00 to this.

[19] The total claim for compensation therefore is $42,250.00.

[20] I accept that the Applicant did not contribute directly or indirectly to the Respondent’s attack upon her.

[21] The primary basis relied upon for the extension which is sought is that the Applicant was not aware of the existence of the statutory scheme of compensation for victims of criminal offences.  I accept that this was so.  The Applicant is an aboriginal woman living on Palm Island and I accept is someone who has had a life characterised by abuse at the hands of others, deprivation and alcohol dependency.  She was not aware of her right to claim compensation until she saw her present solicitor who happened to be on Palm Island whilst acting for other victims. 

[22] I have been referred to a number of cases in which the Courts have been prepared to extend the limitation period under the Criminal Offence Victims Act 1995 upon similar grounds to those advanced here.  At least some of these judgments predate Jacobs v. Roberts (supra).

[23] Whilst it can readily be accepted that the Applicant’s position is one of great disadvantage and it is probably unrealistic to expect her to have been in a position to seek advice, it seems to me that the authorities which bind me, stand in the way of a finding that her lack of knowledge that she had a right to seek compensation for the injuries inflicted on her or that there is a limitation period constitute materials facts of a decisive nature for the purposes of the Limitations of Actions Act.  See cases such as Do Carmo v. Ford Excavations Pty Ltd (1984) 154 CLR 234 and Berg v. Kruger Enterprises Pty Ltd (1990) 2 Qd R 301. 

As Deane J put it in Do Carmo v Ford Excavations Pty Ltd (supra) at pp. 249 and 250:

“The ignorance of a material fact to which those sections refer is, in my view, ignorance of factual matter in the ordinary sense and not ignorance either of the law itself or of the legal consequences of the material facts.”

[24] There may be good policy reasons why a lack of knowledge of such matters on the part of a person such as the Applicant living in an aboriginal community where access to legal advice about her rights is either limited of non-existent and where it cannot be expected that knowledge of these things would be widespread in the community ought to constitute a ground for an extension of time within which to make an application under the Criminal Offence Victims Act 1995.  However in my view this is not a basis upon which an order can be made as the legislation currently stands.

[25] A secondary submission was that the Applicant only became aware of a material fact of a decisiveness nature when Mr. Ryan in his report expressed the view that she had a psychiatric condition. 

[26] I accept that the Applicant did not know this or that it would be likely to persist.

[27] However the Applicant related to Mr. Ryan the various problems which she has suffered from since the accident and it was upon this basis and his examination of her that Mr. Ryan expressed the opinion that the Applicant had the disorder to which he refers.

[28] Whilst it can be accepted that her knowledge deriving from Mr. Ryan’s report that she suffered from a disorder is a material fact, it is difficult to see how it can be regarded as being a material fact of decisive nature.  The test to be applied under s. 30(b) was as Macrossan J. (as he when was) said in Moriarty v. Sunbeam Corporation Ltd (1988) 2 Qd R 325 at 333:

         “In cases like the present, an Applicant for extension discharges his onus not  simply by showing that he was learnt some new fact which bears upon the  nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it.  He must show that without  the newly learnt fact or facts, we would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interest pursue it.  This is what the application of the test of decisiveness under s 30(b) comes down to.”

[29] Applying the objective test which s 30(b) requires of a person in the Applicant’s circumstances (see Castlemaine Perkins Ltd v McPhee (1979) Qd R 469) it is not possible in my view to regard the opinion of Mr. Ryan as having converted what would otherwise not have been, a worthwhile claim for compensation into a worthwhile claim given the problems which the Applicant had experienced and which she related to Mr. Ryan.  It must also be borne in mind that she has suffered other consequences of the assault such as the headaches dealt with in Dr. Boyce’s report and other matters to which she refers in her affidavit.

[30] The Application is therefore dismissed.