Appo v Lydiard [2010] QDC 77

DISTRICT COURT OF QUEENSLAND CITATION: Appo v Lydiard [2010] QDC 77 PARTIES: CRAIG EDWARD APPO (Applicant) V KRISTY ANN LYDIARD (Respondent) FILE NO/S: D 34 of 2008 DIVISION: Civil PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 12 March 2010 DELIVERED AT: Brisbane HEARING DATE: 8 July 2009 JUDGE: Tutt DCJ ORDER: The respondent Kristy Ann Lydiard pays to the applicant Craig Edward Appo the sum of $26,250.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Bundaberg on 15 February 2005. CATCHWORDS: CRIMINAL COMPENSATION - assault causing grievous bodily harm – domestic violence – where respondent stabbed applicant in left side of chest - where applicant sustained physical injuries including “1 cm entry wound” – where applicant suffered “mental or nervous shock”- whether the index assault “materially contributed” to the applicant’s “post-traumatic stress disorder” - where applicant’s behaviour did not contribute to the index assault. Criminal Offence Victims Act 1995 s 24, 25(7), 31 Criminal Code 1899 (Qld) Chapter 65A Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 -- 1 of 12 -- 2 LMW v Nicholls (2004) QDC 118 RMC v NAC [2009] QSC 149 SAY v AZ: ex parte AG (Qld) [2006] QCA 462 COUNSEL: P. James for the applicant No appearance for the respondent SOLICITORS: Legal Aid Queensland for the applicant Introduction: [1] Craig Edward Appo (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged injuries he sustained arising out of the criminal conduct of Kristy Ann Lydiard (“the respondent”) who was convicted by the District Court at Bundaberg on 16 February 2005 for the offence of unlawfully causing grievous bodily harm to the applicant on 15 September 2002. [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 4 December 2008; the affidavit of Dr Barbara McGuire, psychiatrist, sworn 4 December 2008; the affidavit of Dr Eugene Galea, cardiologist, sworn 9 December 2008; and the affidavit of Debbie Richardson, paralegal, sworn 12 December 2008 all filed in this court on 15 January 2009. b) The further affidavit of Debbie Richardson sworn 22 June 2009, as to the substituted service of the application and supporting documents on the respondent, filed 23 June 2009. -- 2 of 12 -- 3 [3] In accordance with the order for substituted service made by this court on 19 May 2009, the applicant’s solicitor served the respondent by way of causing an advertisement in the Public Notices section of “The Australian” newspaper on 4 June 2009. Despite that publication there was no appearance by or on behalf of the respondent at the hearing of the application on 7 July 2009 which proceeded in the respondent’s absence. Facts: [4] The applicant was injured on 13 September 2002 when he was stabbed in the left side of his chest by the respondent with “a kitchen knife and it was about 12 inches long” 1 . The incident arose out of a domestic dispute between the parties, which in terms of the violence used by the respondent was not provoked and as a result of his injuries the applicant was hospitalised “for approximately 9 days after the stabbing some of those days being spent in intensive care. I was eventually released from hospital on 23 September 2002.”2 Applicant’s injuries: [5] The applicant claims compensation for both physical and psychological injuries arising out of the respondent’s criminal conduct namely:- (a) Physical injuries: “ A 1 cm entry wound lateral to the sternum at the level of the left 3rd intercostal space. Clinically there was reduced air entry at the left base and a left sided pleural effusion. His abdomen was soft and non-tender.” 3 1 Paragraph 11 of Exhibit A to applicant’s affidavit filed 15 January 2009. 2 Ibid paragraph 9. -- 3 of 12 -- 4 (b) Mental or nervous shock: “Post traumatic stress disorder to a mild degree”. 4 [6] The applicant’s physical injuries are set out in the medical reports exhibited to the affidavit of the said Debbie Richardson and in the separate affidavit of Dr Eugene Galea and are as follows :- (a) Report dated 2 December 2002 from Dr Kamal Galkepiya of Bundaberg District Health Service; (b) Report dated 21 February 2003 from Dr Kees Nydam of Bundaberg Base Hospital; (c) Report dated 3 April 2003 from Dr Rodney Bruce Garlick of Prince Charles Hospital ; (d) Further report dated 24 April 2007 from Dr Rodney Bruce Garlick; (e) Report dated 29 August 2008 from Dr Eugene Galea, cardiologist. In addition to the above there are photographs submitted of the applicant showing his scarring from the injury and the resulting surgery.5 [7] Undoubtedly the applicant suffered a moderately severe injury to his left chest and the information contained in the above medical reports includes the following: • He was transferred from the Bundaberg District Hospital to the Prince Charles Hospital on 17 September 2002 where he was admitted to the Intensive Care Ward; 3 Medical report of Dr Kamal Galkepiya being Exhibit C to affidavit of Debbie Richardson filed 15 January 2009. 4 Medical report dated 3 October 2007 from Dr Barbara McGuire being Exhibit A to her affidavit filed 15 January 2009. 5 Exhibit G to affidavit of Debbie Richardson filed 15 January 2009. -- 4 of 12 -- 5 • He was taken to the operating room on 17 September 2002. He had a wound at the level of the fourth intercostal space on the left side 1-2 cm lateral to the left external edge; • A 1 cm tear to the interior border of the left upper lobe of the lung was noted and this was oversewn; • The wound pierced the pericardium however there was no blood in the pericardial space. There was no injury to the heart; • He made a slow but satisfactory recovery and he was discharged on 23 September 2002. • The injury was of as sufficient severity to threaten his life if treatment had not been given; • The cardiologist Dr Galea opined 6 “that this man has a moderate to large ventricular septal defect with a moderate left to right shunt; there is pulmonary hypertension and coronary artery disease”; • “There would have been an impairment of his capacity for effort and other functions for three to six months but this has now healed and all of his current symptoms are in my opinion the result of his congenital ventricular septal defect.” • “There would have certainly been restrictions on his activity and his quality of life and lifestyle and his work by the stabbing in the chest, but this would have certainly disappeared by the time the wound had healed within six months maximum.” • “His symptoms now preventing him from working and the fact that he will probably need open heart surgery are the result of his congenital cardiac defect and not in any caused, aggravated or accelerated by the stabbing incident that has been indicated.” 6 Page 3 of Dr Galea’s report. -- 5 of 12 -- 6 [8] Psychological injuries: Dr Barbara McGuire, psychiatrist has assessed the applicant’s injury so far as her specialty is concerned in the following terms: 7 • “Although Mr Appo returned to live with the respondent after the incident it my view that he suffers from posttraumatic stress disorder. A feature of the condition is avoidance of the inflictor of the trauma and I believe that to some extent he was desensitised because of his past experience of violence throughout his life. Nonetheless he demonstrates the criteria of posttraumatic stress disorder at this stage in that he experiences hypervigilance, exaggerated startle reflex, wariness, security fears and sleep troubles. The symptoms are diminishing. I consider that he suffers the condition to a mild degree” • “At the time of the incident he felt terrified, thought he was going to die and felt helpless; • He believes he is more aggressive. He sees the need for self protection and he cannot look at violence on television especially anything to do with knives. These precipitate flashbacks.” 7 Dr McGuire’s report dated 3 October 2007 “based on an interview with Mr Appo on 22 October 2007 lasting one hour”, that is five years post incident. -- 6 of 12 -- 7 Legal principles: What is “mental or nervous shock”? [9] 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 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”. Applicant’s submissions: Physical Injuries: [10] It is submitted on the applicant’s behalf that the physical injuries arising out of the respondent’s criminal conduct should be assessed as follows: • They should “be assessed under two items namely Item 26 for the stab wound and Item 27 being “facial disfigurement/bodily scarring item minor/moderate”. Under Item 26 “it is submitted that the applicant be awarded 25% or the sum of $18,750.00.” • Under Item 27 “it is submitted that the applicant be awarded 10% or $7,500.00 for the scarring he sustained”. -- 7 of 12 -- 8 [11] The physical injuries speak for themselves and are comprehensively discussed in the medical reports referred to above. There is no doubt and I so find that the applicant sustained a “stab wound” and “bodily scarring” in the index assault and is entitled to compensation accordingly. Psychological Injuries: [12] It is submitted on the applicant’s behalf that in respect of his psychological injuries, they should be assessed under Item 31 of the Compensation Table under Schedule 1 of the Act and that the “applicant be awarded the sum of 8% or $6,000.00 for the mild post traumatic stress disorder that he suffered as a result of the incident”. 8 [13] On the medical evidence submitted the applicant has suffered a “post traumatic stress disorder” as a result of the index assault and is further entitled to compensation for this injury in accordance with the Compensation Table. Causation: [14] The issue of causation is relevant to the assessment of compensation in respect of the applicant’s “mental or nervous shock” condition and the general question of causation between the offence of which a respondent to an application for compensation has been convicted and any compensible injury arising out of that offence has been the subject of much judicial consideration both in respect of applications under the Criminal Code 1899 (Qld) (“the Code”) and under the Act which repealed Chapter 65A of the Code. Causation was comprehensively discussed by his honour Judge McGill SC in the matter of LMW v Nicholls (2004) QDC 118 (“Nicholls”). There has also been more recent discussion on “The analysis 8 Applicant’s written outline of submissions dated 30 June 2009. -- 8 of 12 -- 9 in Nicholls” in the matter of SAY v AZ: ex parte AG (Qld) [2006] QCA 462 9 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 other factors are relevant to and impact upon the causation of the alleged injuries. [15] Further to this, her honour’s comments at paragraphs [21] and [22] of the judgment are also apposite to the instant case in respect of the principle to be applied, namely: “The court must have regard to the various limitations and procedural steps in s 25 in arriving at the amount of a compensation order. Only those injuries to which the relevant offence has materially contributed will be compensable. If, as in Stannard, it is possible to identify in the state of injury consequences specifically attributable to the offence, that must be done. In deciding what amount is payable for a given injury, 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.” 10 [16] The applicant’s legal representative was alert to the relevance of “causation” in this application insofar as the applicant’s psychological injuries are concerned and addressed the issue comprehensively in her written submissions. [17] The reason for the issue having to be addressed emanates from Dr McGuire’s report which sets out the applicant’s “personal history” in which it is noted that “he was raised in a culture of violence”. It appears the applicant came from a very dysfunctional family background with “three half siblings” and he “was raised by a very stern father and he used to be flogged by him frequently and he described him 9 This case involved sexual offending but the principles decided are of general application. 10 SAY v AZ: ex parte AG (Qld) [2006] QCA 462 at [22]. -- 9 of 12 -- 10 as having an iron fist”. 11 Violence seems to have been an integral part of his life with Dr McGuire’s opinion being “he displays mild post traumatic stress disorder but it seems to be improving. This is within the context of him having regarded violence as a normal way of life. I don’t believe that he needs treatment for post traumatic stress disorder and the likelihood is that his condition will continue to improve.” 12 Findings on categories of injuries: [18] On the basis of evidence before me and the submissions made, I find that the applicant is entitled to an award of compensation against the respondent for both physical and psychological injuries and that such injuries fall within the following categories of injuries contained in the Compensation Table in Schedule 1 of the Act namely: a) Item 26 – “Gunshot/stab wound (severe) …. 15%-40%” I assess the applicant’s compensation in respect of this item in the sum of $15,000.00 representing 20% of the Scheme maximum payable under Schedule 1 of the Act based on the applicant’s own evidence and the medical evidence before the court in respect of this injury. In particular I rely upon Dr Galea’s opinion that “there would have been an impediment of his capacity for effort and other functions for three to six months but this has now healed and all of his current symptoms are in my opinion the result of his congenital ventricular septal defect” and further “he has recovered completely from the effects of the stabbing”. b) Item 27 – “Facial disfigurement or bodily scarring (minor/moderate) … 2% - 10% 11 Page 3 of Dr McGuire’s report dated 3 October 2007. 12 Ibid. -- 10 of 12 -- 11 I assess the applicant’s compensation in respect of this item in the sum of $7,500.00 representing 10% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court in respect of his injury. In particular I again note Dr Galea’s opinion that “the applicant has a midline thoracotomy scar as a result of the surgical intervention about 20 cm in length as a result of the surgical incision. In addition the applicant has a healed puncture wound in the left parasternal region at the level of the fourth intercostal space plus a 3 cm irregular puncture wound. c) Item 31 – “Mental or nervous shock (minor) … 2%-10%” I assess the applicant’s compensation in respect of this item in the sum of $3,750.00 representing 5% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s personal history contained in the various affidavits filed and in particular the evidence of Dr McGuire, psychiatrist, who grades the applicant’s disorder as “mild”. Applicant’s direct contribution to injury: [19] 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). [20] I refer to the circumstances of the incident as set out in para [4] above and I am satisfied that despite the applicant being an aggressor in the past in a domestic violence sense, his behaviour at the time of the index assault did not either directly or indirectly contribute to the injuries he sustained at the hands of the respondent who resorted to unreasonable violence in the course of a domestic dispute.. -- 11 of 12 -- 12 [21] I therefore assess the applicant’s compensation in the aggregate amount of $26,250.00. Order: [22] I order that the respondent pays to the applicant the sum of $26,250.00 by way of compensation for the injuries the applicant sustained caused by the respondent’s criminal conduct. [23] In accordance with s 31 of the Act I make no orders as to costs. -- 12 of 12 --