Clark v Scantlebury [2010] QDC 381

DISTRICT COURT OF QUEENSLAND CITATION: Clark v Scantlebury [2010] QDC 381 PARTIES: ALAN GLENN CLARK (Applicant) V BARBARA SCANTLEBURY (Respondent) FILE NO/S: 115/2009 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh DELIVERED ON: 7 October, 2010 DELIVERED AT: Beenleigh HEARING DATE: 13 September 2010 JUDGE: Dearden DCJ ORDER: The respondent Barbara Scantlebury pay the applicant Alan Glenn Clark the sum of $9,000. CATCHWORDS: Application – criminal compensation – assault – mental or nervous shock – causation – vulnerability LEGISLATION: Criminal Offence Victims Act (Qld) 1995 s. 20, s. 21, s. 25(7). Victims of Crime Assistance Act (Qld) 2009 s.167(2). CASES: Paterson v Chand & Chand [2008] QDC 214. Summers v Dougherty [2000] QSC 365. SM obo M-H v NK [2005] QDC 408. RZ v PAE [2007] QCA 166. SAY v AZ ex-parte Attorney General [2006] QCA 462. COUNSEL: E Williams for the applicant No appearance for the respondent SOLICITORS: Colin Patino & Company Solicitors for the applicant No appearance for the respondent Introduction [1] The respondent, Barbara Scantlebury, appeared before me at the Beenleigh District Court on 1 August 2007 and pleaded guilty to one count of common assault of the applicant Alan Glenn Clark on 17 April, 2006. The respondent at the same hearing -- 1 of 4 -- 2 pleaded guilty to a wilful damage on 17 April, 2006 (the applicant’s car windows), and entering premises and causing wilful damage on 6 July, 2006 (the applicant’s rental property). In respect of the common assault count (the only count relevant to these criminal compensation proceedings),1 the applicant was sentenced to three months imprisonment. The respondent was sentenced to concurrent sentences of six months imprisonment (in respect of the wilful damage count) and 12 months imprisonment (with respect to the enter premises dwelling and commit wilful damage count). In addition, the respondent was ordered to serve six months of a suspended sentence imposed on 1 August 2007 and breached by the offending. A parole release date of 1 August 2007 (the date of sentence) was set.2 Facts [2] The applicant was the landlord of the respondent. On 17 April 2006, the applicant went to the respondent’s house to serve a notice to leave on her for unpaid rent. The applicant knocked on the door. The respondent invited him in and asked if the rent had been paid “last Tuesday”. The applicant told the respondent that the rent had not been paid. The respondent and another resident, Ms Laverne McSweeney began yelling about a third person who had been living at the house. The respondent told the applicant that the third person had stolen the rent money. The applicant sat quietly and listened while the respondent made excuses for not paying the rent, but after 10 or 15 minutes, the respondent became aggressive and started yelling at the applicant, claiming she was not behind in the rent and that the applicant was ripping her off. The respondent told the applicant to get out and shouted abuse at him. [3] The applicant left the notice to leave on the table. The respondent followed him and continued yelling abuse at him. The respondent grabbed the applicant by the right arm and spun him around, then waved a clenched fist in his face ready to hit him, although the applicant was not, in fact, struck. The applicant pulled away and walked off. [4] As the applicant got into his car to leave, the respondent continued yelling at him and punched the window of his car (the wilful damage count). [5] Three months later, on 6 July 2006, a neighbour of the applicant’s rental property heard a crash from inside that rental property and when she went to investigate, located the respondent inside the property smashing windows with a pole3 (the enter premises and commit wilful damage count). Injuries [6] The applicant claims to have suffered mental or nervous shock as a result of the common assault on 17 April 2006. The law [7] The application in these proceedings was filed on 10 September 2009, prior to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime 1 Criminal Offence Victims Act s.20. 2 Exhibit MM2 (Sentencing remarks) pp 3-4 Affidavit of Mark Meikle sworn 21 May, 2009. 3 Exhibit CJP 1 Affidavit of Colin Patino sworn 21 January, 2010. -- 2 of 4 -- 3 Assistance Act 2009 (VOCCA) on 1 December 2009. This application is preserved pursuant to the transitional provisions of VOCCA s.167(2). [8] I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph [6] of Paterson v Chand & Chand [2008] QDC 214. Compensation [9] Mr Williams, who appears for the applicant, seeks compensation as follows: (1) Item 32 - Mental or Nervous Shock (Moderate) – 10%-20% The assault on the applicant was a technical assault in that the respondent “grabbed [the applicant] by the right arm, and spun him around, then waved a clenched fist in his face ready to hit him”,4 but did not actually hit him. However, it can be accepted that a “personal offence” was committed against the person of the applicant5 and, subject to other relevant provisions of COVA, if the applicant has suffered “mental or nervous shock”, then that is a compensable injury pursuant to COVA.6 The report of Steve Morgan, psychologist7 diagnoses the applicant as having experienced “a post traumatic stress disorder (DSM-IV-TR 309.81) being mild- moderate in severity and of chronic duration8 and major depressive disorder (DSM- IV-TR 296.2x)”.9 The real difficulty in respect of this application, it seems to me, is disentangling the compensable injury (the “mental or nervous shock” arising from the common assault) from the effect of the various other non-compensable offences and occurrences between the applicant and the respondent, as well as taking into account various unrelated matters which have contributed to and compounded the applicant’s mental health status. As the applicant outlined to Mr Morgan, he claims to have been subject to “two assaults” (but the second of those “assaults” was charged as wilful damage, being the damage that occurred to Mr Clark’s car after he left the premises having served the notice to leave on 17 April 2006), and the “numerous verbal threats” from the respondent which were not the subject of any criminal charges. A further complication was the history related by the applicant to Mr Morgan of being “depressed on and off for many years”, having been admitted to psychiatric institutions on two occasions while living in Sydney, in the late 1970’s and the early or mid 1980’s, as well as receiving psychiatric treatment in both Sydney and subsequent to moving to Queensland. A further subsequent complication was an unrelated motor vehicle accident on 26 April 2006, in which the applicant suffered serious physical injuries.10 4 Exhibit C JP1 (Schedule of Facts) p.1 Affidavit of Colin Patino sworn 21 January 2010. 5 COVA s 21 and see Summers v Dougherty [2000] QSC 365, SM obo M-H v NK [2005] QDC 408; RZ v PAE [2007] QCA 166 per de Jersey at para 16, McMurdo P and Philippides J at para’s 37, 45. 6 COVA s. 20. 7 Exhibit SM1 Affidavit of Steve Morgan sworn 2 May 2008. 8 Exhibit SM1 p. 11 Affidavit of Steve Morgan sworn 2 May 2008. 9 Exhibit SM1 p. 10 Affidavit of Steve Morgan sworn 2 May 2008. 10 Exhibit SM1 p. 4 Affidavit of Steve Morgan sworn 2 May 2008. -- 3 of 4 -- 4 Mr Morgan expressed the view that the applicant had “experienced a substantial range of distressing psychological responses to [the] incidents with [the respondent]”11. Mr Morgan notes that the applicant’s “prior history of depression” meant that the applicant would “have been ill disposed to cope with the assault experiences,” and further, that the motor vehicle incident soon after the first assault “may have certainly compounded the depressive aspect and arguably the trauma element” of the first assault (the only compensable offence in respect of this application).12 [10] COVA s. 25(7) requires the court to “have regard to everything relevant” in deciding what amount should be ordered to be paid for an injury. The Court of Appeal in SAY v AZ; ex-parte Attorney General (Qld)13 held that it was sufficient to show that the offending behaviour has materially contributed to the applicant’s injuries. However, Holmes JA held that: “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 … will be necessary. The exercise may be one of discounting, or fixing on a lower percentage in the compensation scale to allow for the role of the 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 …”.14 [11] Mr Williams submits that the applicant’s post traumatic stress disorder and major depressive disorder should receive an award of 18% (i.e. towards the upper end of the moderate range for mental or nervous shock). Mr Williams argues that there should be no reduction, despite the issues in respect of contribution, vulnerability and causation. With respect, it seems to me inevitable that there must be some reduction of what would otherwise be the appropriate award, given the relevant complications which have been identified in this judgment. In my view, it would be appropriate in the circumstances to award 12% of the scheme maximum ($9,000), utilising a “broad brush” approach which recognises the relevant difficulties with contribution, vulnerability and non-compensable causation in respect of the mental or nervous shock diagnosed by Mr Morgan. Accordingly, I award $9,000 pursuant to item 32. Contribution [12] I do not consider the applicant has contributed, either directly or indirectly, to his own injuries.15 Order [13] I order that the respondent Barbara Scantlebury pay the applicant Alan Glenn Clark the sum of $9,000. 11 Exhibit SM1 p. 10 Affidavit of Steve Morgan sworn 2 May 2008. 12 Exhibit SM1 p. 10 Affidavit of Steve Morgan sworn 2 May 2008. 13 [2006] QCA 462. 14 SAY v AZ ex-parte Attorney General [2006] QCA 462 para 23. 15 COVA s. 25(7). -- 4 of 4 --