Mather v Batchelor[2011] QSC 278

SUPREME COURT OF QUEENSLAND

ANN LYONS J:

[1] The applicant Stacey-Lee Jean Mather applies for compensation under s 24 of the Criminal Offence Victims Act 1995 (Qld) and the Victims of Crime Assistance Act 2009 (Qld). 

[2] The respondent was convicted in the Supreme Court of Queensland at Brisbane on 6 March 2009 and was sentenced by Dutney J on 6 March 2009. Whilst the conviction occurred prior to the commencement of the Victims of Crime Assistance Act in 2009 s 155(1) provides that where a conviction happens before commencement a person may apply to the court for criminal injuries compensation if s 154(1)(a)(i) applies. That section provides that if a person could have applied to the court for an order requiring the payment of compensation for injury suffered because of a personal offence committed before the commencement of the Act under s 24 and the person has not made an application at the date of the commencement of the Act then the Act applies to them.

[3] Section 24 of the Criminal Offence Victims Act 1995 provided that if a person is convicted on indictment of a personal offence the person upon whom the personal offence is committed may apply to the court for an order that the convicted person pay compensation for injuries suffered because of the offence.

[4] I am satisfied that the applicant is a person who could have applied under s 24 of the Criminal Offence Victims Act 1995 because she is a victim of a personal offence committed against her by the respondent who was convicted by his own plea on 6 March 2009. Accordingly, s 154 of the Victims of Crime Assistance Act 2009 is satisfied. I am also satisfied that the applicant has complied with the time limit provisions in s 155(2)(b) of the Act in that the Act commenced on 1 December 2009 and an applicant had until 31 January 2010 to apply for orders from a court.

[5] This application was filed on 2 December 2009 and I am satisfied that the application has been filed within time under the Act. 

Service

[6] 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 to be served.

[7] Mr Batchelor is currently serving a term of imprisonment at the Borallon Correctional Centre. Rule 110 of the UCPR provides the method for serving a prisoner. The process server, Philip Grogan, swears that personal service was effected upon the respondent pursuant to r 110 of the UCPR on 3 August 2011 in that he served a person who was authorised to accept service on behalf of the person in charge of the Borallon Correctional Centre.

The offence, conviction and sentence

[8] On 6 March 2009 the respondent pleaded guilty to the following three counts:

Count 1- Burglary with violence whilst armed on 14 April 2008;

Count 2 - Attempted murder on 14 April 2008;

Count 3 - Stealing on 14 April 2008.

[9] In relation to those counts he was sentenced to a term of imprisonment of four years in relation to count 1; 13 years in relation to count 2; and one year in relation to count 3. An application for leave to appeal against the sentence was dismissed.

Facts

[10] In relation to the factual background the respondent was asked by a man called Mitchell to kill the daughter of a woman he had been in a relationship with and with whom he had broken up with in unhappy circumstances. The respondent was advised of the security arrangements in the house and the movements of the two women. Mitchell told the respondent when it would be safe to enter the home and to stab and kill the daughter. In return Mitchell gave the applicant at least $300 to $400 to buy drugs. Mitchell and Mr Batchelor discussed the fact he would wear a beanie and wear rubber gloves so that he could not be recognised or leave any finger prints.

[11] The respondent entered the house whilst the daughter drove her mother to work and went through the house tipping things over and pulling things out of drawers. He then waited in the house until the car returned and the daughter walked into the house. She walked into the house with the lights off and it was dark. The respondent stepped towards her and swung at her with the knife, thrusting the knife into her chest and stomach area. She was stabbed several times.

[12] Ms Mather sustained a number of injuries including three stab like lacerations to the thorax, a laceration to the third intercostal space, a 1cm laceration to the right upper quadrant below the right subcostal margin; three superficial lacerations of 1-2 cm to the right forearm; and two lacerations, two inches in length over the right biceps. All the lacerations required suturing and a left sided intercostal drainage tube was inserted.

Medical reports

[13] Dr David Thiele, plastic and reconstructive surgeon provided a report dated 15 October 2010. Dr Thiele stated that Ms Mather suffered a number of stab wounds and a left-side pneumothorax. She was treated with chest drainage and suturing whilst in hospital.

[14] Dr Thiele stated that on examination he observed the following:

“1.Right arm. On the anterior right arm there is a scar that measures 4.0 x 1.0cm. The scar is significantly crosshatched and hypopigmented. It has a curved shape and there is some trapdooring above the superior edge of the scar. There is also some contour deformity where subcutaneous fat bulges into the scar making it more prominent on elbow flexion.

2.Right distal dorsal forearm. There are two scars measuring 1.5cm x 1.0cm. These are hypopigmented and crosshatched.

3. Right radial distal forearm. There is a small punctate scar measuring 0.5cm in diameter. It is slightly hypopigmented.

4.Left upper pole of breast. There is a 1.5 x 8.0mm scar in the left upper breast. This does sit above the bra line and is visible. It is hypopigmented and crosshatched.

5.Sternum. There is a 1.0 x 1.0cm punctate scar overlying the lower sternal. This is visible in the cleavage area.

6.Right lateral breast. There is a 1.0cm x 5.0mm hypopigmented scar in the anterior axillary line overlying the lateral aspect of the right breast.

7.Right anterior abdomen. There is a 1.0cm linear scar on the right anterior abdomen. It is slightly hypopigmented.

8.Left lateral breast/chest wall. There is an irregular 3.5 x 3.0cm hypopigmented scar at the point of insertion of a chest drain. There is crosshatching in this area. The scar is significantly variable in pigmentation and is mainly hypopigmented.

9.Ms Mather reports a band of numbness radiating posteriorly from the left lateral breast scar. This is consistent with an intercostal nerve injury.”

[15] Dr Thiele assessed Ms Mather’s scarring as amounting to 5 per cent whole person impairment. He stated there was no impairment of chest wall function but there was a patch of numbness running radially from the left lateral breast consistent with an intercostal nerve injury. He stated he would assess her nerve disorder and parasthesia as amounting to 5 per cent whole person impairment. 

[16] A report was also obtained from the applicant’s medical practitioner Dr Lizy Varughese. Dr Varughese provided a report dated 15 December 2009 based on the medical records of the practice from 29 April 2008 when she had presented with anxiety and other symptoms of post traumatic stress disorder. That diagnosis was confirmed by the visiting psychiatrist at Logan Hospital. Dr Varughese stated that she first saw Ms Mather a year after the stabbing when she presented with symptoms of poor sleep and feeling nervous, unable to function with panic attacks and flashbacks to the stabbing incident. Dr Varughese noted that Ms Mather refused to go on medication and presented on three further occasions with a flare up of her psychological symptoms. She received counselling and other psychological help. She was assessed by the visiting psychiatric registrar with post traumatic stress disorder with depressive features.

[17] Ms Mather was subsequently examined by psychiatrist Dr Barbara McGuire on 9 July 2010. In a report dated 12 July 2010 Dr McGuire confirmed a diagnosis of post traumatic stress disorder with depression. She stated that the symptoms of post traumatic stress disorder are nightmares, flashbacks, avoidant behaviour, lowered self-esteem, security fears, hyper vigilance, and exaggerated startle reflex.

[18] Dr McGuire considers that she suffers from those symptoms to a severe degree. Dr McGuire also noted that there were some contributing factors namely that she had a difficult childhood and that she did witness violence inflicted on her mother by her father. However, Dr McGuire noted that the applicant was resilient and was functioning well until the incident. Dr McGuire’s view is that the incident alone caused the post traumatic stress disorder.

The law

[19] It is clear that the applicant has suffered injuries as a result of a personal offence and that she seeks compensation for the effects of those injuries pursuant to s 24 of the Act.

[20] Pursuant to s 5 the court is limited to ordering not more than the scheme maximum of $75,000. Compensation is assessed by comparing the injuries suffered to those listed in the compensation table. It is also clear that under s 22 of the Act the compensation by the court is not meant to reflect the amount of compensation the applicant would be entitled to under the common law and that the maximum is reserved for the most serious cases.

[21] I am satisfied that the applicant did not directly or indirectly contribute to her injuries pursuant to s 25(7) of the Act. In deciding what amount is payable for an injury the court needs to consider whether there are any 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 I have indicated, I do not consider that there is any other factor which I should take into account to reduce the award payable to the applicant.

The assessment of the injuries

[22] The applicant sustained several stab wounds to her chest, right arm, and abdomen, a left-sided pneumothorax requiring the insertion of a drain and also a pneumothorax on the right side. The applicant also sustained scarring as a result of the knife wounds.

[23] In my view the applicant should be compensated under items 26 and 28 and be awarded separate amounts under those two categories. I consider that to properly compensate the applicant it is appropriate to make a separate assessment for stab wounds under item 26.

[24] In terms of item 26, which is gunshot/stab wounds (severe), I consider that the applicant should be awarded 25 per cent, that is, $18,750, under this item for the eight stab wounds sustained to her chest, right arm and abdomen as well as for the left-sided pneumothorax and the right-sided pneumothorax.

[25] In terms of item 28, which is facial disfigurement and bodily scarring, I consider that whilst there should also be a separate assessment for scarring the nerve damage should be assessed with the scarring under the one injury item, namely injury item number 28.

[26] Section 26 of the Criminal Offence Victims Act provides that one compensation order may be made in favour of an applicant because of a substantially single state of injury suffered from a series of incidents of personal offences. Section 26(4) provides:

“(4)In deciding whether an applicant has suffered a substantially single state of injury, the court may have regard to the following—

(a) the applicant’s injuries;

(b) the time over which the injuries were caused;

(c)the similarity of, or connection between, the injuries;

(d)the similarity of, or connection between, the events that caused the injury;

(e) anything else that is relevant.”

[27] In the decision of Wren v Gaulai [2008] QCA 148, Fraser J stated:

“[23] No doubt the courts are obliged to perform the task required by the Act fairly and reasonably and to avoid double compensation for the same consequences of the applicant's injuries, but the legislative intention is that the amount of a compensation order should be the sum of each amount obtained by assessing the seriousness of each injury described in an item by comparison with the most serious example of any such injury, and then scaling up accordingly within the range, or up to the maximum, set out opposite such item. If the total sum exceeds the scheme maximum, then the amount of the order is the scheme maximum.

[24] 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.

[25] In some cases that may be impractical. In R v Jones, ex parte Zaicov ([2002] 2 Qd R 303 at 307; [2001] QCA 442, referred to with approval in Jefferis v Bickerton & Wallace [2006] QCA 282 at [10]-[11], [21], [30]) Holmes J referred with approval to Wilson J's observation in M R v Webb ([2001] QCA 113 at [16]) that:

‘It is often the case that an applicant's injury could be categorised under more than one head in the compensation table. Of course an applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so overcompensating the victim.’”

[28] In relation to the scarring the applicant states in her affidavit that she has scars on her body from the incident which are unsightly and she indicates that they remind her daily of the incident. She considers that the scar on her right arm is particularly ugly.

[29] In terms then of item 28 I consider that the applicant should be awarded 12 per cent or $9,000 under this item for the scarring and the nerve damage. This assessment clearly then includes a component for the nerve damage.

[30] As Dr Thiele has indicated the stab wounds constitute a 5 per cent whole person impairment and the nerve damage also constitutes a 5 per cent whole person impairment.

[31] In terms of item 33, which is mental or nervous shock (severe) I consider that the applicant should be awarded 30 per cent or $22,500 for severe post traumatic stress disorder and depression.

[32] In terms of comparable cases it is clear that every case turns on its own facts however I note that in the decision of Allan Richard Barlow (aka Whitfield) v Edward Hassem[1] involving minor/moderate scarring as a result of severe stab wounds to the chest in a case involving grievous bodily harm an award of $18,750 was made under item 26 and $11,250 under item 28.

[33] The total compensation is therefore $50,250.

[34] There will be an order therefore in the terms of the draft initialled by me and placed with the file.