Cella v Tucker [2008] QDC 253

DISTRICT COURT OF QUEENSLAND CITATION: Cella v Tucker [2008] QDC 253 PARTIES: SHARNIE MICHELLENE CELLA (by the litigation guardian NARNIE RACHELLE EBCOT) (Applicant) v LEONARD DAMIEN ANDREW TUCKER (Respondent) FILE NO/S: BD 1936 of 2008 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: Brisbane DELIVERED ON: 31 October 2008 DELIVERED AT: Brisbane HEARING DATE: 11 September 2008 with further written submissions received on 12 September 2008 JUDGE: Rackemann DCJ ORDER: The respondent pay the applicant compensation in the sum of $9,000 CATCHWORDS: Criminal compensation – spiral fracture to left femur of 2 year old child – regressed behaviour – mental or nervous shock COUNSEL: Ms F Muirhead, solicitor for the Applicant No appearance for the Respondent SOLICITORS: Legal Aid for the Applicant -- 1 of 6 -- 2 [1] On 21 May 1998 the respondent was convicted, on his own plea of guilty, of one count of unlawfully assaulting the applicant and thereby doing her bodily harm. The applicant now seeks compensation pursuant to the Criminal Offence Victims Act 1995. [2] The offence occurred on 9 September 1997 when the applicant, who was born on 12 March 1995, was only 2 years of age. The respondent, who was then residing in a de fact relationship with the applicant’s mother, was 24 years of age. [3] On the day of the offence, the respondent had been working on his car when he noticed that the applicant had spilt some milk on the back seat. He then grabbed the applicant, dragged her across the seat of the car and ultimately dropped her onto the ground. This resulted in a spiral fracture to the applicant’s left femur. Compensation is now sought under two headings in the compensation table in schedule 1 to the Act, namely: 20 Fracture/loss of use of leg/ankle (severe) 31 Mental or nervous shock (minor) The applicant did not directly or indirectly contribute to her injuries. [4] Following the incident the applicant was taken, by her mother, to the Millmerran Hospital and was subsequently transferred, by ambulance, to the Toowoomba base hospital where she was an inpatient from 9 September 1997 to 14 October 1997. The spiral fracture was treated by traction, until there was an adequate callous formation. Following her discharge she was seen in specialist orthopaedic outpatients on 10 November 1997. At that stage her gait was antalgic on the right side. X-rays showed good position with plentiful callous. [5] The applicant was seen, more recently, by an orthopaedic surgeon, Dr Lloyd Toft, who provided a report dated 23 January 2008. Dr Toft found that the injury has healed completely with no residual impairment or disability. In his opinion, which I accept: -- 2 of 6 -- 3 “From the clinical point of view, the injury has healed completely and there is no residual impairment or disability… There are no restrictions to Sharnie’s activities and, as the injury occurred at the age of 2½ years, there will be no effect on Sharnie’s life or lifestyle. The fracture healed completely and without complication within three months of the injury.” [6] It was submitted, on behalf of the applicant, that compensation for the fracture should be assessed at 15% of the scheme maximum. In support of that submission I was provided, by way of supplementary submissions, with reference to a number of cases involving injuries which fell either within items 19 or 20 of the compensation table. [7] Of the cases to which I was referred, that of Cowper v Bandon & Phillips1 is the highest award (10%) for a “minor/moderate” injury. In that case the applicant suffered abrasions to both knees, left ankle and foot and swelling to the left foot. An ultrasound showed a minor tear to the Achilles tendon. The surgeon was of the opinion that the applicant had suffered a moderate degree of suffering and that the prognosis was uncertain. [8] I was referred to three cases of injury in the “severe” category. One of those involved an injury assessed at 20% of the scheme maximum, which is much higher than is appropriate in this case. [9] In Peter v Coconut2 the applicant suffered a compound fracture (closed) of the left tibia/fibula which was assessed at 15% of the scheme maximum. The applicant in that case however, experienced ongoing symptoms described as follows: “My left leg is still not right, it hurts when I have been standing or walking for a while. Sometimes the leg swells up after using it for a long time. It also gets sore when the weather is cool or it rains.” 1 Shanahan DCJ 17 July 2007. 2 White DCJ 10 March 2006. -- 3 of 6 -- 4 [10] In Denning v Coen, Rooney & Connolly3 a compound fracture of the right tibia was assessed at 12% of the scheme maximum. The applicant in that case was an inpatient for 5 days during which surgery was performed. He was then discharged with his leg in plaster and required medical supervision for some time. He attended hospital weekly for about 12 weeks and his leg remained in plaster for about 20 weeks. He underwent physiotherapy and the leg was not fully weight bearing until about 28 weeks after injury. He had been left with some continuing pain in the right leg, particularly on any significant use, some loss of movement in the right ankle and some wasting of the muscles in the leg. An orthopaedic surgeon assessed a 6% whole of person loss or impairment. [11] Whilst the applicant’s spiral fracture was significant, it resolved within a few months, leaving no residual physical effects. In my view, the injury falls towards the top end of what may be described as “moderate” or towards the bottom end of what might be called “severe”. In the circumstances I assess compensation for the leg injury at 10% of the scheme maximum, being $7,500. [12] The claim for mental or nervous shock is based upon the regression and insecure and fearful behaviour which the applicant exhibited for some time after the offence. The applicant herself has no recollection of the incident. According to Dr McGuire, a psychiatrist who interviewed the applicant on 22 January 2008: “She told me that she couldn’t remember anything about it, denied any nightmares or flashbacks and told me that she didn’t think about it. She said she couldn’t recall the incident and had been forgetful all her life.” [13] The applicant’s mother’s evidence is, in part, as follows: “9 This was very hard for Sharnie as she was only 2½ years of age. I would stay with her during the week at the hospital and occasionally go home for the weekend. It was difficult 3 McGill DCJ 10 August 2007. -- 4 of 6 -- 5 for a small child in traction and difficult to keep her entertained. She was in hospital for 5 weeks. 10 At the time of the offence Sharnie was very very distressed and obviously in pain. She screamed and cried. 11 When Sharnie came home from hospital she would cringe and scuttle away every time there was a knock on the door. At the time of the offence Sharnie was walking. She had started walking at 11½ months. It took her about 6 months to walk properly again. 12 After the offence Sharnie became shy, timid and petrified. She did not sleep well. She had nightmares for about 4 years. Sharnie only seemed to be comfortable with me, her grandmother and with close friends. 13 Sharnie is no longer bothered by what happened with the respondent and has few memories of the offences now.” [14] The evidence of nightmares for four years is recorded in Dr McGuire’s report, but the same report refers to regressed behaviour for only four months. The solicitor for the applicant submits that I should proceed on the basis that the regressed behaviour was for four months, and I am content to proceed on that basis. [15] It may be noted that Dr McGuire’s report refers to other symptoms which the applicant suffers, but which are not referable to the offence in question. [16] It is not every adverse reaction to an offence which will justify compensation under the heading “mental or nervous shock”. As Thomas J said in R v Kazakoff ex parte Ferguson4 : “Clearly, the ordinary usage of the term has been to describe situations of injury to health, illness or some abnormal constitution 4 [2001] QdR 320 at 324. -- 5 of 6 -- 6 of mind or body over and above that of normal human reaction or emotion following a stressful event … (but) it would in my opinion unduly limit the term if it were confined to conditions that are recognised as psychiatric disorders. Conversely it overstretches the term to use it as a source of additional compensation upon natural human emotions felt by people who cope adequately with the aftermath of an offence and are able to get on with their lives.” [17] Part of the applicant’s reaction, in this case, can be described as natural human emotions following a stressful event, but part, including the regressed behaviour, went beyond that and can properly be described as mental or nervous shock albeit, of a minor nature. It was contended, on behalf of the applicant, that compensation for mental or nervous shock should be assessed at 2% of the scheme maximum (being the very bottom of the range) and I accept that submission. [18] I therefore assess compensation in the total amount of 12% of the scheme maximum, being $9,000. -- 6 of 6 --