Caris v Hassall [2010] QDC 114

1 DISTRICT COURT OF QUEENSLAND CITATION: Caris v Hassall [2010] QDC 114 PARTIES: ANDREW BERNARD CARIS (Applicant) V PAUL JAMES HASSALL (Respondent) FILE NO/S: D30/2009 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Gladstone DELIVERED ON: 16 March 2010 (ex tempore) DELIVERED AT: Gladstone HEARING DATE: 16 March 2010 JUDGE: Irwin DCJ ORDER: Respondent pay the applicant the sum of $15,000 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 (Qld) CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – application for criminal compensation – respondent convicted of serious assault – where the applicant suffered severe mental and nervous shock – assessment of compensation CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND –where applicant sought compensation from respondent, on the basis of his conviction of one count of serious assault – where psychologist found that the applicant’s symptoms met the -- 1 of 17 -- 2 JUDGMENT DSM IV criteria for diagnosis of Post Traumatic Stress Disorder – where the serious assault exacerbated those symptoms – whether the applicant’s award of compensation should be reduced CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND – where applicant sought compensation from respondent, on the basis of his conviction of one count of serious assault – where the applicant’s symptoms were severe for about two weeks following the serious assault, and subsequently reduced to and continued at a moderate level – what is the nature of the injury that was suffered because of the offence. Criminal Offence Victims Act 1995 (Qld), s 24, s 25, Sch 1 AT v FG [2004] QCA 295, cited Hall v Dizo [2010] QDC 71, applied R v Ward; ex parte Dooley [2001] Qd R 436, applied RMC v NAC [2009] QSC 149, cited SAY v AZ; ex parte A-G (Qld) [2007] 2QdR 295; [2006] QCA 462, applied Sopiniski v Pike [2010] QDC 72, applied COUNSEL: S.L. O’Gorman (Solicitor) for the applicant No appearance for the respondent SOLICITORS: Chris Trevor and Associates for the applicant No appearance of the respondent -- 2 of 17 -- 3 JUDGMENT HIS HONOUR: The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld)[the Act], for injuries sustained as a result of the offence of serious assault, of which the respondent was convicted on his plea of guilty before me in the Gladstone District Court on 24 April 2009. I sentenced the applicant to seven months' imprisonment for this offence, which involved spitting blood and saliva into the face of the applicant police officer on 19 March 2009 at Gladstone. I also sentenced him to six months' imprisonment for an offence of stealing, with which I dealt with him for on the same occasion. These sentences were to be served concurrently. I ordered that his parole release date be fixed at 8 August 2009, that is, at the midway point of his sentence. On 21 December 2008, the applicant was working in his role as a police officer when he responded to a request for assistance from other police officers, who were attempting to detain the respondent in relation to the stealing offence. Upon arrival, the applicant saw another police officer struggling with the respondent, who was handcuffed. He approached the respondent and tried to calm him down by talking to him. By this time, as I recognised in my sentencing remarks, it appears that the respondent had started to bleed from around the mouth area. The respondent turned his head and spat a mixture of blood and saliva into the applicant's face, with the result that he felt the spittle enter his eyes and mouth. -- 3 of 17 -- 4 JUDGMENT Although extremely shocked, the applicant immediately retreated, wiping the spittle from his face. He also obtained an antibacterial gel and smothered his face in it to limit the potential exposure to infectious disease. He then returned to the watch-house. At the charge counter, the respondent told police officers that he was HIV and hep C positive. The applicant said that he immediately felt shock at being spat on, particularly after hearing this. As I said in my sentencing remarks, this increased his suffering. The applicant says that he felt anxiety and concern about the possibility of contracting a communicable disease. He was also concerned about the impact this would have on his family. He had always enjoyed a close physical relationship with his children, aged seven and nine, and the thought of this altering caused him much distress. As a result, on that date, he attended a local hospital for testing to determine whether he had contracted such a disease. He became more concerned as the seriousness of the implications were made clear to him at this time. This caused him undue stress and distress. He was also notified that the respondent would be tested for the disease. In his affidavit of 2 November 2009, the applicant states that he was subsequently notified that the tests on each of them returned negative results. However, these tests must be -- 4 of 17 -- 5 JUDGMENT repeated to be certain that there has been no transmission of these diseases, although preliminary advice is that the risk of contracting an infection is low. Following the offence being committed against him, the applicant felt anxiety, stress, anger and a change in how he interacted with people. He was concerned that he might pass a disease to either his wife or children, and restricted his contact with them so as not to put them at risk. He considered whether or not to continue in his employment as a police officer. Although he has chosen to remain in this occupation, he has noticed that his behaviour is now different in dealing with members of the public. He is more alert and guarded when in close contact with people, particularly aggressive and intoxicated persons. As a result of a referral on 24 August 2009, the applicant attended upon Dr Keane, a consultant clinical psychologist, for the purposes of a psychological assessment. Dr Keane's report, which is dated on 20 September 2009, about six months after the incident, forms part of the evidence before the Court. As stated in this report, the applicant is 43 years of age. He is described as a uniformed sergeant patrol supervisor. At paragraph 2.2.2, reference is made to the murder of the applicant's mother. At paragraph 2.5.2, Dr Keane refers to the applicant showing a -- 5 of 17 -- 6 JUDGMENT mild to moderate level of avoidance symptoms, hyperarousal or numbness in relation to the spitting incident and the murder of his mother. As set out in paragraph 2.6.1, the applicant stated that he had symptoms which included: • During the past 20 years, he has been mildly sad and depressed. • During the past 10 years, he has been stressed and anxious. • During the past 10 years, he has been frequently angry. • For many years, he has been having difficulties in maintaining sleep. These symptoms become worse with stress and shiftwork. • For some years, he has been irritable and restless. The severity of this problem has been moderate. • During the past five years, he has been frequently tired. The severity of this symptom has been moderate. • His speech and thoughts have been slow. • He becomes stressed at memories and thoughts of the murder of his mother, and the incident of the assault by the respondent. -- 6 of 17 -- 7 JUDGMENT • In stressful situations, especially in relation to that incident and the murder of his mother, he has been experiencing anxiety attacks, manifested in sweating, irregular heart beating and hot flushing. The severity of these symptoms has been mild. The applicant told Dr Keane that following the assault upon him by the respondent, the severity of these symptoms became worse. Following the assault incident, for the first two weeks, the intensity of these symptoms was severe. The severity of the symptoms was moderate for another four weeks. At the time of Dr Keane's assessment, the severity of his symptoms was mild. At paragraph 2.6.4.2, Dr Keane says that during the course of his clinical review, the applicant reported symptoms, and he noted signs of mild level of agitated mood and anxiety. It appears, to Dr Keane, that following the incident of the assault by the respondent, the applicant was experiencing a severe level of agitated mood, anxiety and stress for a period of two weeks. The severity of these symptoms had decreased to a moderate/mild level by the time of the assessment. At that time, the applicant showed symptoms of avoidance and hypervigilance in relation to the assault incident, and the murder of his mother. Dr Keane's summary and conclusions include: • The applicant's condition meets the DSM-IV criteria for -- 7 of 17 -- 8 JUDGMENT diagnosis of a posttraumatic stress disorder. • His posttraumatic stress disorder symptoms are primarily related to the murder of his mother, but these symptoms have been exacerbated by the incident of the assault upon him by the respondent, and its sequels. In conclusion, Dr Keane says that following the assault, the applicant suffered combined symptoms of anxiety, stress and agitated mood. These symptoms meet the DSM-IV criteria for diagnosis of posttraumatic stress disorder (DSM-IV, 309.81). He also says that the applicant has been experiencing these symptoms for some years. The severity of the applicant's symptoms prior to the incident, which involved the assault upon him by the respondent, was mild. His symptoms were exacerbated following this incident. The severity of his symptoms was severe for about two weeks following the incident. Subsequently, the intensity of his symptoms decreased to a moderate level, and has continued to be at a moderate level since then. Dr Keane says that the applicant may benefit from medical and psychological treatment concerning the symptoms of his posttraumatic stress disorder. As he has suffered these symptoms for a considerably long time, he is of the opinion that psychological and medical treatment of his condition may be required to continue for at least 12 months. The costs of 12 months of psychological treatment through a private psychologist and inpatient intervention for 12 months may -- 8 of 17 -- 9 JUDGMENT amount to $25,000. In these circumstances, it is submitted on behalf of the applicant that even taking into account the pre-existing injury resulting from the murder of his mother, the Court would assess his symptoms at the higher end of the moderate range, or the lower end of the severe range, of mental or nervous shock, within the compensation table, which is schedule 1 to the Act. It is submitted that the Court would make this assessment based on: • The very real concern and fear suffered by the applicant that he was at risk of contracting a serious communicable disease, given the statements of the respondent. • The impact on the applicant's relationship with his family, in particular, with his children, to then limit their potential risk of exposure to a communicable disease. • The applicant has experienced anxiety attacks in stressful situations, particularly related to the assault incident involving the respondent, and the murder of his mother. • The applicant's continuing symptoms, including avoidance and hypervigilance. • The need for long-term psychiatric intervention to assist in the possible recovery of such symptoms. -- 9 of 17 -- 10 JUDGMENT It is therefore submitted that he should be awarded compensation at the top of item 32 of the compensation table. This is on the basis of moderate mental or nervous shock for which there is an entitlement for an award of compensation between 10 per cent and 20 per cent of the scheme maximum of $75,000. This is also the bottom of item 33 of the table, on the basis of severe mental or nervous shock, for which there is an entitlement to an award of compensation between 20 per cent and 34 per cent of the scheme maximum. It is submitted that for the totality of the mental or nervous shock caused by the respondent to the applicant, it is appropriate to order total of 20 per cent of the scheme maximum, that is, an amount of $15,000. The respondent has not appeared on the hearing of this application. He was personally served, with the originating application and the applicant's affidavit, on 30 November 2009, by a District Court bailiff who has deposed to this in an affidavit. The respondent identified himself to the bailiff as the person who was the subject of the application, but said he was not going to Court again. In the circumstances, I proceed in the respondent's absence. The offence of serious assault on the respondent was a -- 10 of 17 -- 11 JUDGMENT personal offence, therefore, section 24(1) of the Act is satisfied. The threshold question which arises is one of causation. In SAY v. AZ; ex parte Attorney-General (QLD) [2007] 2 Qd R 363; [2006] QCA 462, Holmes JA, with whom Jones and Mullins JJ agreed, described the statutory scheme as follows, as paragraphs [4] and [5]: "[4] The regime for the payment of the compensation for criminally inflicted personal injury is to be found in part 3 of the Criminal Offence Victims Act 1995. It establishes a scheme for payment of compensation for, among other things, injuries suffered by the applicant 'caused by a personal offence committed against the applicant'. Where someone is convicted on indictment for such an offence, or it is taken into account on sentence, the applicant may seek an order 'that the convicted person pay compensation to the applicant for the injury suffered by the applicant because of the offence', and the Court may then make a compensation order for 'an amount to be paid by the convicted person to the applicant because of the injury'. [5] As to what is to be taken into account in determining compensation, section 25(7) provides as follows: 'In deciding whether an amount or what amount should be ordered to be paid for an injury, the Court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to -- 11 of 17 -- 12 JUDGMENT the injury.' Nowhere in part 3 is there any more precise indication of how compensation is to be assessed when factors other than offences resulting in conviction or taken into account on sentence, contribute to the applicant's injury." This is relevant in the present case, because factors other than the offence resulting in the conviction of the respondent for the serious assault of spitting on the applicant, which is the basis of this application, have contributed to the applicant's injury. This is because the applicant was already vulnerable at the time the offence was committed. He had been experiencing the symptoms of a posttraumatic stress disorder for some years as a result of his mother's death. Therefore, what the applicant has suffered is that he has been made much worse than he originally was, or would have been (absent other traumatic events in his life). As indicated, his symptoms prior to this incident were mild. They were exacerbated as a result of the incident, being severe for two weeks, and have since remained at a moderate level. As was held in SAY v. AZ at [20], the first issue which the Court has to decide under section 25(7) is whether taking all relevant factors into account, the offence of spitting has materially contributed to the injury identified by Dr Keane, namely the posttraumatic stress disorder. Before addressing this issue, I find that a posttraumatic -- 12 of 17 -- 13 JUDGMENT stress disorder is a recognisable psychiatric illness or disorder, and constitutes mental or nervous shock, which is to be compensable under the Act. This would be in accordance with the view of Byrne SJA in RMC v. NAC [2009] QSC 149, that mental or nervous shock within the Act is confined to a recognisable psychiatric illness or disorder. In AT v. FG [2004] QCA 295, at [17], Jerrard JA made reference to "establishing the existence of a posttraumatic stress disorder, and therefore mental or nervous shock". On the basis of the applicant's evidence, and Dr Keane's opinion, I find that the respondent's conduct in spitting on the applicant materially contributed to this disorder, and is a proper subject for compensation. As indicated, the incident exacerbated mild posttraumatic stress disorder symptoms, to symptoms that were severe for a two week period, and have since remained moderate. Once this position is reached, the second issue which arises under section 25(7) if that of quantification, as held in SAY v. AZ at [20], that is: "What amount should be ordered to be paid for that injury?" In answering this question, other contributing factors cannot be regarded as irrelevant. As further stated in SAY v. AZ, at paragraphs [22] and [23]: "[22] In deciding what amount is payable for a given injury, -- 13 of 17 -- 14 JUDGMENT the Court must consider whether there are 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. [23] Where there is a single state of injury produced by a number of factors, some or all of which may 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. Given that the Act scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes entirely independent of the respondent would be given considerable more weight than those merely reflecting part of a continuum of offending. Whether there ought to be any discount to reflect the fact that other behaviour of the respondent has contributed to the applicant's state of injury will depend on all the circumstances, which may include the nature of that behaviour, how closely related it was to the relevant offences, and the relationship of the victim and the offender in which it occurred. The basis on which any reduction in compensation is made must, of course, be clearly identified." As observed by Dorney QC DCJ in Sopinski v. Pike [2010] QDC 72, in SAY v. AZ, the Court of Appeal sanctioned a broad brush approach as often being necessary. In the present case, the question is whether the award of compensation for a single state of injury in the form of a posttraumatic stress disorder should be reduced because of the applicant's pre-existing -- 14 of 17 -- 15 JUDGMENT symptoms of posttraumatic stress disorder. Before I address this issue, I will consider what item of the compensation table applies to the determination of the quantum which I would order the respondent to pay to the applicant, subject to any reduction, because of the pre-existing symptoms of posttraumatic stress disorder in relation to the applicant's mother's death. In Hill v. Dizo [2010] QDC 71, Dorney QC DCJ adopted the approach that when the Act requires a decision about what item in schedule 1 of the compensation table applies, concern must be directed at what the nature of the "injury" is that was suffered "because" of the offence. That can only be the injury that is originally suffered, which, in turn, means that where a later diagnosis is, that the severity of the original injury is moderated, that is merely something that is taken into account in assessing, pursuant to the second limb of section 22(4) of the Act, where, in the scaling, a particular case falls. Adopting this approach in the present case, where Dr Keane opines that the applicant's symptoms were severe for about two weeks following the assault incident, and subsequently decreased to and continued at a moderate level, the injury originally suffered as a result of the incident was severe mental or nervous shock within item 33 of the compensation table. The assessment of compensation must be made in accordance with -- 15 of 17 -- 16 JUDGMENT the approach in R v. Ward; ex parte Dooley [2001] Qd R 464 at 440, that the maximum amount of compensation allowed in respect of each type of injury listed in the compensation table is reserved for the most serious cases. I find that the injury in this case is severe mental or nervous shock within item 33 of the table. Scaling the amount of compensation within the table, having regard to the contributing factor of the applicant's re-existing symptoms of posttraumatic stress disorder, and the moderation of the original serious injury, I assess the entitlement under this head at 20 per cent of the scheme maximum, which is at the bottom of the range for severe mental or nervous shock. This is an amount of $15,000, as submitted on the applicant's behalf. Further, I conclude that the applicant's actions have not contributed to the mental or nervous shock suffered by him, and do not, for this reason, require any allowance to be made or a lower percentage of compensation to be fixed as a consequence. As I said in sentencing the respondent, the applicant was only trying to do his job at the time that he sought to assist the other police officer to apprehend and restrain the respondent. Therefore, I assess compensation for severe mental or nervous shock within item 33 of the compensation table at 20 per cent of the scheme maximum. This results in an award of $15,000. I order the respondent pay the applicant the sum of $15,000 by -- 16 of 17 -- 17 JUDGMENT way of compensation for the injury suffered by him because of the offence of serious assault, committed by the respondent against his person on 19 March 2009, for which the respondent was convicted on his plea of guilty, upon being charged on indictment presented at the District Court at Gladstone, and for which he was sentenced on 24 April 2009. ----- -- 17 of 17 --