Dutton v Tacorda & Ors [2010] QDC 164

DISTRICT COURT OF QUEENSLAND CITATION: Dutton v Tacorda & Ors [2010] QDC 164 PARTIES: Annette Leonie Dutton (Applicant) v Alvin Diaz Tacorda (First respondent) and Jerry Jack Siaosi (Second respondent) and William Robert Hui (Third respondent) FILE NO/S: 916/09 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Beenleigh District Court DELIVERED ON: 23 April 2010 DELIVERED AT: Brisbane HEARING DATE: 16 July 2009 JUDGE: Tutt DCJ ORDER: 1. The second respondent Jerry Jack Siaosi pays to the applicant Annette Leonie Dutton the sum of $18,750.00 representing 100% of the compensation payable herein for which he is jointly and severally liable with the first respondent for injury sustained by the applicant and caused by the respondent on 3 October 2006 for which the respondent with others was convicted by the District Court at Beenleigh on 13 July 2007; 2. The first respondent Alvin Diaz Tacorda pays to the applicant Annette Leonie Dutton the sum of -- 1 of 18 -- 2 $3,750.00 of the above figure of $18,750.00 representing 20% of the compensation payable herein for which he is jointly and severally liable with the second respondent for injury sustained by the applicant and caused by the respondent on 3 October 2006 for which the respondent with others was convicted by the District Court at Beenleigh on 13 July 2007. CATCHWORDS: CRIMINAL COMPENSATION – robbery in company – where applicant was robbed at ATM – whether “direct and material contribution to the injury” by offenders – one offender driver of motor vehicle – another offender passenger only in motor vehicle - where applicant “fell on both knees and right hand” – where applicant suffered an aggravation of a serious pre-existing injury – where applicant suffered “mental or nervous shock” – where applicant did not contribute to index injury. Criminal Offence Victims Act 1995, ss 24, 25(7), 26(6) Day v Johnson & Ors (2004) QDC 467 Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 LMW v Nicholls (2004) QDC 118 RMC v NAC [2009] QSC 149 SAY v AZ: ex parte AG (Qld) [2006] QCA 462 Street v Fitzgerald (2002) QSC 235 SOLICITORS: Mr F.J. Tauchmann Solicitor of Gouldson Legal for the applicant No Appearance by or on behalf of respondents -- 2 of 18 -- 3 Introduction: [1] Ms Annette Leonie Dutton (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 for alleged injury she sustained arising out of the criminal conduct of Alvin Diaz Tacorda, Jerry Jack Siaosi and William Robert Hui who were convicted by the District Court at Beenleigh on 13 July 2007 in respect of the respondents Tacorda and Siaosi and 24 August 2007 in respect of the respondent Hui for the offence of robbery in company of the applicant on 3 October 2006 at Springwood, Queensland. [2] The application for compensation is made pursuant to s 24 of the Act and is supported by the following material: (a) the applicant’s affidavit sworn 27 February 2009; the affidavit with exhibits of Kim Dianne Douglass solicitor sworn 31 March 2009; the affidavit with exhibits of Dr Bruce Hall neurosurgeon sworn 20 March 2009; the affidavit with exhibits of Dr Brendan Moore anaesthetist and pain medicine specialist sworn 10 March 2009; the affidavit with exhibit of Dr Don Todman neurologist sworn 16 December 2008; and the affidavit with exhibit of Dr Steve Morgan clinical psychologist sworn 23 December 2008; all filed in this court on 3 April 2009 (b) the affidavits of service with exhibits of Glen Walker Finlay investigator sworn 4 May 2009; the affidavit of service with exhibit of Dean Andrew Cadet sworn 18 May 2009; the affidavit with exhibit of Clinton Miles Deputy Director Client Services sworn 26 May 2009; the affidavit with exhibit of Timothy Feeley Deputy Director Community Services sworn 29 June 2009 all filed in this court on 2 July 2009. -- 3 of 18 -- 4 [3] All respondents were respectively served personally with the application and supporting affidavits but made no appearance at the hearing on 6 July 2009 at Brisbane and the hearing proceeded in their absences. Background facts: [4] The applicant is presently 50 years of age and on 3 October 2006 was shopping at the Arndale Shopping Centre at Springwood when she withdrew a sum of $100.00 from the Westpac automatic teller machine at that centre. [5] The applicant’s description of the incident is set out in her statement to the investigating police officer in the following terms:1 “ 6. When I walked out the glass sliding doors I remembered that I needed some cash. I walked to my right to use the first Westpac ATM. I was pushing a Coles trolley which contained three bags of groceries and my handbag. 7. As I approached the ATM’s I noticed there was nobody using either of the machines. 8. I stopped at the ATM with my purse in my hand and the trolley to my left. At this time I was aware of the trolley and my handbag as it was open and my mobile phone was on top. 9. I inserted my Westpac debit card into the machine, entered my P.I.N. number, and selected a mini statement to see how much available credit I had in my account. The mini statement slip was printed and I removed it from the machine and read it. The time on this statement was 3:21pm. 10. I did not notice if anyone was around me at all as I was concentrating on how much money I had. 1 Paragraphs [6]-[20] of applicant’s statement dated 3 October 2006. -- 4 of 18 -- 5 11. I selected the option to withdraw some money. I entered the amount of $100. I chose the option of not getting a receipt. I then removed my card from the machine. 12. As the two $50 notes came out of the machine I remember seeing a hand come beside my right shoulder and take the money. I turned to my right straight away to face the person. 13. I recall seeing a male I did not know. He was about my height, he had short dark hair and he looked to be in his twenties. 14. I said to the unknown male “Please don’t take my money!” 15. He ran off behind me and past my trolley. 16. I recall that I fell on both my knees and my right hand facing away from the machine. I felt pain to my right hand and was worried about my back. I am unsure if I was pushed or if I tripped. I got up to my feet and could see that he had not got far away. He had run past my trolley and I could still see him. 17. I wondered what I could do but I knew I could not run after him as I am recovering from recent spinal surgery. 18. I saw there were several people in the area so I yelled ‘He just took my money.” I yelled this while still standing on my feet at the ATM. 19. I saw this male run towards a stationary car waiting near the entrance further down. This car was facing my direction. I saw the male person run towards the passenger side and dive into the back seat. 20. The car then started to drive towards me from the parcel pick up area outside the other entrance, and I noticed there was a male person in the driver’s seat. The male who stole my money was in the back with some boxes in the car. I only saw these two persons in the car.” -- 5 of 18 -- 6 Applicant’s injuries: [6] Prior to the robbery the applicant had undergone extensive spinal surgery and describes the extent of her injuries in the index robbery in the following terms 2 : “32. Being robbed that afternoon caused me a lot of anguish as, at the time, I was off work recovering from spinal surgery, my second surgery in a 15 month period. 33. My second surgery for a prolapsed disc at the L5/S1 level occurred on 26 July 2006. 34. Dr Bruce Hall, Neurosurgeon performed this surgery as my first surgery provided only temporary relief from pain. 35. The second surgery went well and I had undergone course of physiotherapy and I was also doing exercises at home. 36. I had been to see Dr Hall about two weeks prior to the incident and he told me that I was recovering well and would be able to return to work within a few weeks. He told me that although my wound had healed, I was still healing internally and it would take until around Christmas time before I had fully recovered. He told me I should look after myself and be careful. 37. In the morning on the day of the incident I saw my General Practitioner, Dr Zoltan Bourne. I also saw my Physiotherapist who was very happy with my progress and was happy for me to go back to work. Dr Bourne had also reduced my medication. I was on slow release Tramal but I was doing so well that it was changed to ordinary Tramal to be taken only if required. 38. Following the incident and as a direct result of it, I suffered a lot of pain and had to take pain killers and anti- inflammatory medication on a daily basis to manage the pain. 39. I also had to have extra physiotherapy, CT scans and remedial massage.” -- 6 of 18 -- 7 [7] The applicant also claims 3 to have suffered “psychological issues since the robbery. I am fearful of using ATMs and pay stations at parking stations. I am also very nervous of being alone in public areas and I am jumpy and constantly watching for anyone who may be a threat to me. None of these things affected me prior to the incident. She further stated: 47. The incident made me feel incapable and weak because when my assailant took my money, I was unable to do anything to stop him. I could not chase after either the man or the car because of my recent surgery. The only defence I had was to yell out and it has left me feeling very insecure and vulnerable. 48. Whenever I think about the incident I feel distressed and tearful. I think about the incident often, without any prompting.” [8] There is a large volume of medical evidence filed in this application which contains the applicant’s lengthy history of back problems which would appear to emanate from a “degenerative disc disease”. The x-ray report dated 24 February 2005 some 19 to 20 months before the index robbery makes the following “comment”:4 “There is multi-level degenerative disc disease which is accentuated at L5-S1, with lesser changes at L4-5 and L3-4 levels. There is central disc herniation with associated posterior vertebral margin bony spurring at L5-S1 with more subtle smaller central disc protrusion at L4-5 and annulus bulging only evidence at L3-4. There are osteodegenerative changes as well at the apophyseal joints with resultant spinal canal and foraminal stenosis. These changes become more progressive inferiorly. Additional features of a degenerative retrolisthesis of L5 and S1 with posterior vertebral margin spurring 2 Paragraphs [32]-[39] of Applicant’s affidavit filed 3 April 2009. 3 Paragraphs [46]-[48] of applicant’s affidavit filed 3 April 2009. 4 Diagnostic Imaging Report of 24 February 2005. -- 7 of 18 -- 8 both centrally and extending to the right at this level further compromise in particular the spinal canal and exit foramina. There is significant foraminal stenosis at this level.” [9] The medical and hospital reports indicate that the applicant has been plagued with a number of medical problems over several years summarised in a report dated 17 October 2007 from Dr Brendan Moore to Dr Bruce Hall in the following terms: “Past Medical History Annette has large goitre with Hashimoto’s disease. Past surgical history includes gall bladder surgery in 2003, as well as three gynaecological procedures performed over 10 years ago. I have commenced a trial of Pregabalin (Lyrica) 75mgs at night and have asked Annette to reduce her Tramal to 100mgs per day. I have arranged diagnostic facet joint injections bilaterally at L4/5 and L5/S1 as well as a caudal epidural injection of local anaesthetic and steroid to settle her radiating bilateral leg pain.”5 [10] All of the medical reports tendered as evidence before the court describe the circumstances of the index robbery different from that described by the applicant herself, in that all of the medical reports generally describe the applicant as having been “assaulted” by “the assailant” when he “tried to grab her money”.6 Dr Todman’s report also states “in the incident she resisted and there was a twisting injury to her lumber spine”. Again, in his conclusion Dr Todman states: “Conclusion She twisted in the incident which caused severe back pain and right sciatica. She had been recovering from spinal surgery at the time. The ongoing symptoms are related to this assault. The original back complaint was a right L5/S1 disc protrusion. This had been treated with two surgical procedures, the last one in July 2006. The outcome from the second surgery was satisfactory with improvement in symptoms and a clearance to return to work. The 5 Exhibit BM1 to affidavit of Brendan Moore filed 3 April 2009. 6 Report of 22 July 2008 from Dr Don Todman neurologist being exhibit DT1 to his affidavit. -- 8 of 18 -- 9 October 2006 incident caused a serious aggravation of this back complaint. A progress MRI scan has not shown any recurrent disc protrusion. Treatment has been appropriate since the incident occurred. There has been some moderation of symptoms, but she still has daily back pain, right sciatica and numbness in the right foot. The clinical features are consistent with a right S1 radiculopathy.” [11] Again, in Dr Moore’s report of 17 October 2007, he refers to the applicant in the following terms: “I note Annette’s past history of having had microdisectomy for L5/S1 prolapse in 2005 and 2006. Following her most recent procedure last year she had obtained almost complete relief by October 2006 by which time she (was) physically assaulted at an ATM machine which has resulted in recurrence of her lower back and leg problems.” [12] In Dr Morgan’s (clinical psychologist) report of 4 August 2008 he reports the circumstances of the index robbery in the following terms: “She recalled that as the money was dispensed – “a hand” of a male came from her right and grabbed her money.” She described that this led to a struggle for the cash – that led the thief to eventually take her money and whereby she was left lying in pain on the ground.” Further in paragraph 7.0 of his report he states: “However, Ms Dutton reported aggravation of that back injury – associated with the struggle with the offender and also her fall.” -- 9 of 18 -- 10 [13] Ultimately, Dr Morgan summarises the applicant’s condition sofaras his specialty is concerned in the following terms: “The assault experience and its effects are best understood within the context of her prior recovery, now jeopardised. In such context, it is compelling to view that she has struggled to cope with the effects the assault – manifest in persistent psychological distress – that is dominantly of the form of somatic concern. However, her anxiety, avoidance, intrusive features, tearfulness, brittle mood, lowered mood and low self-confidence also are such as to indicate Adjustment Disorder, With Anxiety and Depressed Mood DSM) IV-RE 309.28). Although with some trauma features, she does not meet the criteria for Post-Traumatic Stress Disorder (DSM IV-TR 309.81). Summary My professional view is that Ms Dutton has experienced psychological distress associated with this assault incident and it sequelae. She reported pain, anxiety, avoidance, intrusive features, tearfulness, brittle mood, lowered mood and low self-confidence. I note her focal concern for somatic experience – but also believe that her overall experience of distress suffice to meet the threshold for Adjustment Disorder, With Anxiety and Depressed Mood DSM IV-TR 309.28). It is clear that she has experienced distinct and marked psychological distress referent to this assault. Taking into account her experience at the time of assault incident and the continuing negative psychological effects endured, also previous and arguable pre-disposing anxiety and low self-confidence – my professional view is that her experience of distress related to the assault offence has been of moderate to severe severity and of moderate effect in terms of impairment.” Applicant’s submissions: [14] The applicant’s submissions include the following:7 “2.2 The application is made on the basis of a ‘mental or nervous shock disorder’ and a physical injury, which is an 7 Applicant’s written submissions dated 1 July 2009. -- 10 of 18 -- 11 aggravation of a pre-existing condition, stated as being an injury to the lower back.” 3.4 As the person ran past the Applicant she fell onto her knees and right hand facing away from the ATM. The Applicant got back up on her feet but was unable to follow the offender as she was recovering from spinal surgery. The Applicant yelled “he just took my money” and bystanders took down the registration number of the vehicle that the male person ran to and entered the back seat. This vehicle had driven off once the male person was inside. 3.10 The Applicant’s back was injured as a result of the robbery. She suffered significant pain which required daily use of pain killers and anti-inflammatories. She has also required additional physiotherapy, further examinations by her surgeon, referral to a pain specialist, CT Scans and remedial massage. [15] It is further submitted on the applicant’s behalf that her injuries fall under the following categories of injury contained in Schedule 1 of the Act, namely: (a) “Item 23 – Neck/back/chest injury (severe) … 8%-40%” and in respect of this Item the applicant claims that the appropriate assessment should be 15% of the Scheme maximum, that is, the sum of $11,250.00; (b) “Item 32 – mental or nervous shock (moderate) … 10%-20% or Item 33 – mental or nervous shock (severe) …. 20%-34%.” In respect of this item the applicant claims the appropriate assessment should be “20%-25%” of the Scheme maximum, that is, the sum of $15,000.00-$18,750.00. What is mental or nervous shock? [16] The recent decision of RMC v NAC [2009] QSC 149 revisited this question and what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed the legal history of the condition in -- 11 of 18 -- 12 paragraphs [25] to [37] of his judgment and ultimately came to the conclusion in paragraph [38] thereof that: “Nervous shock” in the Act is confined to a recognisable psychiatric illness or disorder”. Causation: [17] The topic of causation between offences of which a respondent to an application for compensation has been convicted and any compensable injury arising out of those offences has been the subject of much judicial consideration both in respect of applications under the Code and under COVA which repealed Chapter 65A of the Code. The issue of causation was comprehensively discussed by his Honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”), and there has also been more recent discussion on “The analysis in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462 by Holmes JA and the observations by her Honour at paragraphs [19] and [20] in particular are very helpful in the consideration of the rationale in the awarding of compensation to applicants where “non-compensable causes” are also relevant to the index injury. [18] Further to this, her Honour’s comments at paragraphs [22] and [23] of the judgment are also relevant in respect of the principle to be applied when assessing the appropriate award of compensation to be made under the Act particularly where her Honour states: “[23] 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 of the kind adopted by Thomas JA in Sanderson v Kajewski will be necessary. The exercise may be one of discounting, or fixing on a lower percentage on the compensation scale to allow for the role of 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. Given that the Act’s scheme is to require an offender to compensate his or her -- 12 of 18 -- 13 victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerably more weight than those merely reflecting part of a continuum of offending.” Findings on category of injury: [19] On the basis of the evidence before the court and the submissions made I make the following findings: (a) The applicant is entitled to an award of compensation against one or other of the respondents for both physical and psychological injuries as a result of the index robbery. In respect of the applicant’s physical injury I find that such injury falls within Item 22 of the Compensation Table under Schedule 1 of the Act, namely, “neck/back/chest injury (moderate) … 5%-10%”, and I assess the applicant’s compensation under this item in the sum of $7,500.00 representing 10% of the Scheme maximum for the following reasons: (i) While I accept that the applicant “fell on both my knees and my right hand facing away from the machine”, shortly after “seeing a hand come beside my right shoulder and take the money” I find that this fall aggravated or exacerbated the applicant’s very significant pre- existing degenerative back condition (described as “multi-level degenerative disc disease”) from which she had suffered for some time prior to the index robbery and for which she had undergone extensive back surgery. (ii) The medical opinions expressed by the various practitioners, whose reports have been tendered in evidence, appear to be based on the incorrect premise that the applicant was either “physically assaulted at an ATM machine” (Dr Moore); “unfortunately mugged at an -- 13 of 18 -- 14 ATM” (Dr Bruce Hall) or “assaulted (and) … in the incident she resisted and there was a twisting injury to her lumber spine” (Dr Don Todman) all of which do not coincide with the applicant’s statement to the investigating police officer shortly after the incident occurred on the same day of the incident, namely, 3 October 2006. Further to this, from Dr Todman’s report it would appear that when the applicant had “the latest MRI scan of the lumber spine from July 2007” it showed “some epidural scarring around the right S1 nerve root but no recurrent disc protrusion.” (iii) The applicant “returned to full-time office work … in January 2007” which she was about to do at the time of the robbery so that her return to work was delayed by no more than a period of 3 months. (iv) While I note that Dr Todman expresses the opinion in his report of 22 July 2008 that the applicant’s “current symptoms have stabilised and represent a permanent state of affairs” and that “from AMA 5 Guidelines Table 15.3” the applicant has “a 13% whole person impairment which is the upper part of the range of 10-13% based on the level of symptoms and effects on ADLs” half of which is “due to the assault of 03.10.2006 and half is pre-existing”, I find that this opinion is based upon the incorrect premise that the applicant had been engaged in some sort of “tug-of-war” with the second respondent which is not supported by the applicant’s evidence. On the balance of probabilities therefore I find that had Dr Todman been apprised of an accurate description of what occurred to the applicant in the index robbery (that is what she herself told the investigating police officers), the extent of the aggravation to the applicant’s pre- existing back condition would not have been assessed to the same degree as stated. -- 14 of 18 -- 15 (b) With respect to the applicant’s “mental or nervous shock” injury I find that the appropriate category of injury under which the applicant is entitled to an assessment of compensation for this condition is Item 32 – “mental or nervous shock (moderate) … 10%-20%” and I assess the applicant’s compensation under this item in the sum of $11,250.00 representing 15% of the Scheme maximum. I find this on the basis of the applicant’s own evidence contained in her affidavit filed 3 April 2009 and the evidence of the psychologist Dr Steve Morgan who diagnosed the applicant’s condition as “Adjustment disorder with anxiety and depressed mood” but that the applicant “does not meet the criteria for Post Traumatic Stress Disorder”.8 [20] I therefore assess the applicant’s total compensation arising out of the index robbery in the sum of $18,750.00. Applicant’s contribution to the injury [21] In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act). [22] I refer to the circumstances of the incident as set out in paragraph [5] above and I am satisfied that the applicant did not either directly or indirectly contribute to the injuries she sustained at the hands of the respondents. 8 Paragraph [48] of Dr Morgan’s report. -- 15 of 18 -- 16 Liability of the respondents [23] Section 26 of the Act relevantly provides that: “(5) A single compensation order may be made against more than one convicted person.” (6) If a single compensation order is made against more than 1 convicted person, the order may provide for— (a) separate liability of a convicted person scaled according to the person’s direct and material contribution to the injury; or (b) joint liability of more than 1 convicted person for an amount payable under the order; or (c) both the separate liability mentioned in paragraph (a) for an amount and joint liability for the amount. (7) Without limiting subsection (5), if each of more than 1 convicted person directly and materially contributed to injury mentioned in subsection (3)(a) and (b), a court may make a compensation order against each of more than 1 of the convicted persons.” [24] Although all three respondents were convicted of the index offence, their participation in the offence was to varying degrees. [25] The primary offender was the second respondent Siaosi who actually took the $100.00 from the applicant as it came out of the machine in front of her. The first respondent Tacorda was the driver of the car, who “parked the car about 10 metres away from the A.T.M”. The third respondent Hui was a back seat passenger in the vehicle; was aware of what Siaosi intended to do but remained in the vehicle when the robbery took place. -- 16 of 18 -- 17 [26] It is submitted on the applicant’s behalf that there should be an apportionment of liability between respondents for any compensation to be paid on the following basis:9 (i) The first respondent “in the amount of 20% in which he is jointly and severally liable with the second and third respondents in respect of the amount of 20%.” (ii) The second respondent “in the amount of 100% for which he is jointly and severally liable with the First and Third Respondents in respect of the amount of 100%.” (iii) The third respondent “in the amount of 10% for which he is jointly and severally liable with the First and third Respondents in respect of the amount of 10%.” [27] To support this apportionment the applicant relies on the decisions of Street v Fitzgerald (2002) QSC 235 and Day v Johnson & Ors (2004) QDC 467 where apportionment was made on the basis of the respective “criminal responsibility” of the offenders in each case. [28] I am satisfied that this method of apportionment of responsibility between offenders is appropriate and orders for the compensation payable in this application will be made on the basis of the reasoning expressed in those decisions. 9 Page 9 of applicant’s written submissions. -- 17 of 18 -- 18 Orders: [29] I make the following orders: (i) The second respondent Jerry Jack Siaosi pays to the applicant the sum of $18,750.00 representing 100% of the compensation payable herein for which he is jointly and severally liable with the first respondent; (ii) The first respondent Alvin Diaz Tacorda pays to the applicant the sum of $3,750.00 of the above figure of $18,750.00 representing 20% of the compensation payable herein for which he is jointly and severally liable with the second respondent. [30] I make no finding of liability against the third respondent William Robert Hui, who, though a back-seat passenger in the vehicle with knowledge of the index offence and therefore a party to the offence, could not be said to have “direct(ly) and material(ly) contributed to the injury” within the terms of s 26(6) of the Act. [31] In accordance with s 31 of the Act I make no order as to costs. -- 18 of 18 --