Morris v Lowe[2009] QSC 441

SUPREME COURT OF QUEENSLAND

[1] Tony Leigh Morris applies for compensation under section 24 of the Criminal Offence Victims Act 1995 (“1995 Act”) which provides that where a person is convicted on indictment of a personal offence then “the person against whom the personal offence was committed may apply to the court …for an order that the convicted person pay compensation for injury suffered because of the offence.”

[2] The respondent is Trudi Lee Lowe.  On 21 April 2008 Ms Lowe pleaded guilty to one count of serious assault on the applicant.  She was served with these proceedings but indicated that she did not wish to be heard.

[3] The Victims of Crime Assistance Act 2009 (“the 2009 Act”) came into force on 1 December 2009 and repealed the 1995 Act.  However, Mr Morris’ rights are preserved by the transitional provisions in Chapter 6 of the 2009 Act which require that this application be heard and determined under the provisions of the 1995 Act, given that the application was filed on 24 November 2009 and before the commencement of the 2009 Act.[1]

The Relevant Provisions of the 1995 Act

[4] It is necessary that the injury for which compensation is sought comes within the definition of “injury” in s 20 of the 1995 Act. “Injury” is defined to include “bodily injury, mental or nervous shock…or any injury specified in the compensation table…”

[5] Schedule 1 to the Act consists of a Compensation Table setting out various descriptions of injury and ascribing to each such injury a percentage or a range of percentages of the scheme maximum of $75,000.  By s 25 of the 1995 Act a Court assessing compensation may not order more than the prescribed amount, which is $75,000.

[6] By s 25(4) the amount of compensation awarded for injuries specified in the table may not be more than the percentage of the scheme maximum which appears in the table with respect to each injury.  The scheme maximum is reserved for the most serious cases and the amounts provided in other cases are required to be scaled according to their seriousness: s 22(4).

[7] It is relevant to note that the compensation intended to be provided by the 1995 Act “is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise” (sub-section 22(3)) and in arriving at an appropriate amount of compensation the legislation provides that the Court is not to apply principles used to decide common law damages for personal injuries (sub-section 25(8)).

Circumstances of the Offence

[8] Mr Morris is a police officer.  In the course of his duty he attended at certain premises in Gladstone and was there assaulted by Ms Lowe who bit him on the arm.  The police had attended at the residence because of information they received about drug related activities.  Ms Lowe was a drug user.  I sentenced Ms Lowe to imprisonment for 3 months and ordered that that term be suspended after a term of 1 month for an operational period of 2 years.

The Applicant’s Claims

[9] Mr Morris claims to be entitled to compensation pursuant to the provisions of the 1995 Act under item 1 of the compensation table (bruising/laceration (minor)) and item 33 of that table (mental and nervous shock (severe)).

The Injuries

[10] Mr Morris was aware of the biting of his upper left arm when it occurred and when he looked under his shirt sleeve found a bite mark which was “red and raised”.  He also saw two small scratches which he believed were caused in the bite which drew a minor amount of blood.  When examined at the Gladstone hospital he was found to have bruising on his arm but the report states that the skin did not appear to have been broken.

[11] Mr Morris’ principal concern was that he may have contracted an infectious disease from a known drug taker.  He was given a tetanus immunisation at the hospital and blood tests were done for syphilis, hepatitis B, hepatitis C and HIV.  All these tests returned negative results.

The Assessment

[12] I agree that the physical injury itself would best be assessed under item 1 bruising/laceration (minor/moderate) with a range of 1% to 3%.  I would class the injury at the 1% level.

[13] The more significant claim is for mental or nervous shock.  Mr Morris has been assessed by Dr Alan Keen, a consultant clinical psychologist.  Dr Keen is of the opinion that as a result of the assault Mr Morris suffered a diagnosable psychiatric injury namely an adjustment disorder with mixed anxiety and depressed mood with severe symptoms for a period of about 4 months and that these symptoms subsided over the ensuing 2 months.  Thereafter Mr Morris has experienced symptoms of phobia that meets the criteria for a diagnosis of a specific phobia within the DSM- IV categories.

[14] Mr Morris has therefore suffered a recognisable psychiatric injury and that is plainly capable of being an “injury” as defined in s 20 of the 1995 Act.[2]

[15] Dr Keen reports that the symptoms that Mr Morris suffered as a result of the psychiatric injury included poor concentration, severe depression and sadness, extreme anxiety and worrying, loss of interest in everyday activities, disturbance of sleep, difficulty sitting still and frequently feeling tired and exhausted.  Because of his concerns about the possibility of contracting a disease Mr Morris avoided all personal relationships with his wife for some months and limited his contact with his two young children.  He limited his social activities generally.  His reaction to the assault has affected the manner in which he carries out his duties and he continues to be worried about being assaulted again.

[16] Dr Keen believes that Mr Morris would benefit from some further treatment over the next 12 months. 

[17] I am of course conscious of the vulnerability of police officers to attack and the justifiable concern when suffering injuries from assaults of this type with the potential for the contraction of significant diseases.  Ms Lowe’s conduct deserves to be condemned.  However, those factors cannot impact on the compensation that can be awarded under the provisions of the Act.

[18] In my view given that the severe symptoms lasted for a period of 4 months, far less than in many cases that come before the Court, and given that Mr Morris has been able to get on with his work and has improved in his general functioning it is appropriate to assess the category of injury as in the moderate range (Item 32).  I would assess the appropriate percentage of scheme maximum at 15%.

[19] The overall assessment then is at 16% and compensation is assessed at $12, 000.

Order

[20] I order that the respondent pay to the applicant the amount of $12, 000 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 for injuries suffered as a result of the offence of which the respondent was convicted on 21 April 2008.