Allam v Vale [2008] QDC 131

DISTRICT COURT OF QUEENSLAND CITATION: Allam v Vale [2008] QDC 131 PARTIES: SAMUEL RAYMOND ALLAM (Applicant) V AARON DOUGLAS JAMES VALE (Respondent) FILE NO/S: BD125/07 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Beenleigh DELIVERED ON: 27 June 2008 DELIVERED AT: Beenleigh HEARING DATE: 16 May 2008 JUDGE: Dearden DCJ ORDER: The respondent Aaron Douglas James Vale pay the applicant Samuel Raymond Allam the sum of $15,000 CATCHWORDS: Criminal compensation – dangerous driving causing death – applicant not included on indictment - motor vehicle collision – injuries - concussion – bruising – mental or nervous shock - soft tissue swelling - scalp laceration LEGISLATION: Criminal Offence Victims Act (Qld) 1995 ss 19(1)(a), 21, 22(4), 24, 25(7), s 26 CASES: Beardsley v Loogatha [2001] QCA 438, Georgetown v Sandow [2007] QDC 125 Hicks v The Minister for Justice and Attorney-General [2005] QSC 44 Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 R v Ward; ex parte Dooley [2001] 2 Qd R 437 R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 RZ (by his litigation guardian) v PAE [2007] QCA 166 Wren v Gaulai [2007] QDC 125, [2008] QCA 148 -- 1 of 9 -- 2 COUNSEL: Ms M McLennan for the applicant The respondent appeared in person SOLICITORS: Cleary Hoare for the applicant The respondent appeared in person Introduction [1] The applicant, Samuel Raymond Allam, seeks compensation in respect of injuries suffered by him arising out of a motor vehicle collision which occurred on 13 August 2005 at Wembley Road, Berrinba, resulting in the respondent, Aaron Douglas James Vale, pleading guilty before me in the District Court at Beenleigh on 9 March 2007 to a single count of dangerous operation of a motor vehicle causing death while adversely affected by an intoxicating substance. The respondent was sentenced to five years imprisonment, suspended after serving a period of 18 months imprisonment, with an operational period of five years. The respondent’s driver’s licence was disqualified absolutely. Facts [2] The respondent, who was aged 23 years as at 13 August 2005, was served at 1.25 pm on that day with a domestic violence order obtained by his then partner. Shortly after being served by police with the order, the respondent got into his car and drove from his residence at Runcorn to the point of collision on Wembley Road at Berrinba. Prior to leaving his home, the respondent had inhaled butane gas, and he inhaled further butane gas while he was driving. The distance from the respondent’s home to the collision point was some 11 kilometres. -- 2 of 9 -- 3 [3] The applicant, who was then 16 years old, was travelling in the rear seat of a car owned and driven by his mother, Roxanne Allam, aged 43. Also in the car at the time was the applicant’s maternal grandmother, Jeanette Madalena, aged 66. Their vehicle was returning from the Grand Plaza Shopping Centre and was heading along Wembley Road in the direction of Woodridge. At about 2.45 pm, the respondent was driving in the opposite direction, and on a two-lane section of Wembley Road, without any great speed, the respondent’s vehicle veered from his side of the road directly into oncoming traffic. The respondent’s vehicle sideswiped a van and then collided head-on with the vehicle in which the applicant was a passenger. The applicant’s mother and grandmother died instantly as a result of the collision. The applicant has no recollection of the collision, but recalls being in the back of an ambulance being taken to hospital subsequent to the collision.1 Injuries [4] The prosecution submissions on sentence indicate that “[The applicant] suffered severe concussion, … for some months he was not able to walk fast or to jog without some discomfort in his hip area … [and] suffered severe bruising and abrasions around his face, torso and legs.”2 A medical certificate issued by the Princess Alexandra Hospital Emergency Department dated 4 November 2005 indicated: “Closed head injury Minor scalp laceration after high speed rollover – motor vehicle accident [and] CT scan brain – normal.”3 1 Sentencing submissions pp 4-6. 2 Sentencing submissions p 8. 3 Exhibit SRA5 affidavit of Samuel Raymond Allam sworn 9 October 2007. -- 3 of 9 -- 4 [5] A subsequent letter under the hand of Dr Alison Ryan, Registrar, Department of Emergency Medicine, Princess Alexandra Hospital indicates that: “[The applicant] was diagnosed with the following injuries: 1. (R) shoulder soft tissue swelling. 2. soft tissue swelling over nose.” [6] The letter goes on to note that “[the applicant’s] treatment for the above injuries included analgesia, observation, investigations including CT head which was normal.” The applicant was discharged from hospital on the day of the collision (13 August 2005), having spent a number of hours in hospital.4 The law [7] This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”). COVA commenced on 18 December 1995 and provides for compensation in respect of injuries suffered by an applicant because of an offence. R v Warde; ex parte Dooley5 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries. In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury with comparison to the “most serious” in respect of each individual item in Schedule 1. Riddle v Coffey6, is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication. 4 Exhibit SRA 3 affidavit of Samuel Raymond Allam sworn 9 October 2007. 5 [2001] 2 Qd R 436. 6 [2002] 133 A Crim R 220; [2002] QCA 337. -- 4 of 9 -- 5 Compensation [8] Ms McLennan, counsel for the applicant, seeks compensation under three items as follows: (1) Item 2 – bruising/laceration (severe) 3%-5% [9] Ms McLennan submits that with the bruising affecting the applicant’s face, torso and legs,7 and with lacerations on the applicant’s left hand and arm, cuts to both legs and the right upper thigh as well as cuts and abrasions to the applicant’s face,8 that an assessment should be made at 5% of the scheme maximum (ie at the top of the range for Item 2). [10] In support of that submission, Ms McLennan refers to R v Ward; ex parte Dooley9 where the court stated that “to qualify for the 5% which is the top of the ‘severe’ range, one would not have to be beaten black and blue from head to toe; but the bruising or laceration must have some claim to be one of the ‘most serious cases’.”10 [11] In my sentencing remarks I noted that the applicant “… was not able to walk or jog without discomfort for some months and suffered severe bruising and laceration to his face, torso, and legs.”11 [12] In the circumstances I accept the submission that it is appropriate to award 5% ($3,750) pursuant to Item 2. 7 Exhibit SRA 3 affidavit of Samuel Raymond Allam sworn 9 October 2007 (Victim Impact Statement). 8 Exhibit SRA 2 affidavit of Samuel Raymond Allam sworn 9 October 2007. 9 [2001] 2 Qd R 437. 10 P 438, para 9. -- 5 of 9 -- 6 (2) Item 9 – fractured skull/head injury (no brain damage) – 5%-15% [13] Ms McLennan refers to my sentencing remarks which noted that the applicant “suffered severe concussion”12 and submits that with the “severe concussion, post concussion amnesia13 the applicant’s confusion on waking, 14 and his continual sleeping post accident15 that an assessment should be made at 10% of the scheme maximum. Ms McLennan refers me to the decisions of Georgetown v Sandow16, where I awarded 5% to an applicant who suffered a “moderately severe cerebral concussion without sustaining permanent damage”. Ms McLennan also refers to my decision in Wren v Gaulai.17 However, a careful reading of my decision in that case indicates that there was no separate award made under Item 9 (fractured skull/head injury (no brain damage)), and an award was instead made pursuant to Item 8 (facial fracture). On appeal, however, Fraser JA held that “the evidence does not justify the conclusion that the appellant suffered a head injury that is compensable under [Item 9], and accordingly took into account the appellant’s “problems with concentration and memory and his stress and destruction” and compensated those pursuant to Item 33 (mental or nervous shock (severe)).18 [14] I accept the submission that the concussion, which did not involve any actual brain damage, is nonetheless compensable at the mid-range of Item 9. Accordingly I award 10% ($7,500) pursuant to Item 9. 11 Sentencing remarks (hearing Exhibit 3) p 5. 12 Hearing Exhibit 3 (sentencing remarks) p 5. 13 Exhibit SRA 9, p 9, para 2 – affidavit of Samuel Allam sworn 9 October 2007. 14 Exhibit SRA 4 (ambulance report) affidavit of Samuel Raymond Allam sworn 9 October 2007. 15 Exhibit SRA 2 (p 7 para 52) affidavit of Samuel Raymond Allam sworn 9 October 2007. 16 [2007] QDC 125 para 13. 17 [2007] QDC 236. 18 Wren v Gaulai [2008] QCA 148 per Fraser JA at para 57. -- 6 of 9 -- 7 (3) Item 31 – mental or nervous shock (minor) – 2%-10% [15] The applicant was examined by Ms Dorothea Vallianos on 31 January 2006. Ms Vallianos noted “Blunted affect. Suicidal ideation (more to escape pain than end life). Recurrent distressing thoughts/recollections about the trauma, efforts to avoid thoughts and feelings associated with the trauma, irritability and regular outbursts of anger, survivor guilt, difficulty concentrating, jumpier and more easily startle [sic], easily upset, feelings of sadness, touchy, lacking motivation and energy, difficulty relaxing” and concluded that the applicant suffered “symptoms of complicated grief reaction with possible post traumatic stress disorder”.19 [16] Dr John Varghese examined the applicant on 14 July 2006 and concluded that the applicant did not display at that time “any features of a diagnosable mental disorder … [but showed] an understandable degree of residual normal grief”. Dr Varghese noted that the applicant had received some family and spiritual counselling from a trained psychologist and religious minister as well as some sessions with CentaCare and had been assessed by psychologists as requiring further treatment but had not undertaken any as at that point in time. Dr Varghese considered that it would be reasonable to provide the applicant up to five sessions of “available psychiatric/psychological therapy time to assist in healing of his grief reaction”. 20 [17] Ms McLennan submits that although Dr Varghese concluded that the applicant did not have a diagnosable psychiatric condition, the symptoms recorded by Ms Dorothea Vallianos, psychologist, amounted to “mental or nervous shock”. In that respect, Ms McLennan referred me to the decision of Thomas JA in R v 19 Exhibit SRA 8 affidavit of Samuel Raymond Allam sworn 9 October 2007. 20 Exhibit SRA 9 (report of Dr John Varghese dated 17 July 2006) p 10. -- 7 of 9 -- 8 Kazakoff; ex parte Ferguson21 where his Honour stated that “clearly the ordinary usage of the term [mental or nervous shock] has been to describe situations of injury to health, illness or some abnormal condition of mind or body over and above that of normal human reaction or emotion following as stressful event”.22 Further, Thomas JA stated that “it is extremely difficult to define the point at which mental nervous consequences to a claimant from a crime become compensable as ‘mental or nervous shock’ … To limit compensation to cases where a diagnosable mental disorder or psychiatric illness results would give the term ‘mental or nervous shock’ too limited a meaning”.23 [18] Although Dr Varghese was not able to conclude that the applicant had a diagnosable psychiatric condition as at 14 July 2006, it is clear that the report from Ms Vallianos indicates that, in her opinion, as at 31 January 2006, the applicant was suffering “mental or nervous shock” being a response “over and above that of normal human reaction and emotion”. 24 In the circumstances, I conclude that Ms Vallianos’ report leaves open, at the least, a modest award under this item. [19] The submission by Ms McLennan is that an assessment should be made at 5% of the scheme maximum ($3,750) under Item 31. [20] Accordingly I award the applicant 5% under Item 31. 21 [2001] 2 Qd R 320. 22 p 324 para 17. 23 p 325 para 21. 24 See Holmes J in Beardsley v Loogatha [2001] QCA 438, para 12 and Byrne J in Hicks v The Minister for Justice and Attorney-General [2005] QSC 44, para 20. -- 8 of 9 -- 9 Was the applicant a person against whom a “personal offence” has been committed? [21] The applicant was not named in the indictment, clearly because his injuries did not amount to “grievous bodily harm,” and the deaths referred to in the indictment were those of his mother, Roxanne Allam, and his grandmother, Jeanette Madalina. However, in my sentencing remarks, I specifically noted that the respondent’s actions had “caused the death of two … people, and an injury, although not amounting to grievous bodily harm, to a third”,25 which was a clear reference by me to the injuries suffered by the applicant in these proceedings. In my view, the applicant is clearly a person who has suffered injury as a result of a “personal offence” ie an indictable offence committed against the person of someone. 26 [22] I conclude therefore that the applicant is entitled pursuant to COVA to an award of criminal compensation in respect of the injuries suffered by him as a result of the offence committed by the respondent. Contribution [23] I do not consider that the applicant contributed in any way to his own injuries.27 Conclusion [24] I order that the respondent, Aaron Douglas James Vale, pay the applicant, Samuel Raymond Allam, the sum of $15,000. 25 Sentencing remarks p 3. 26 COVA s 19(1)(a), s 21 and see RZ (by his litigation guardian) v PAE [2007] QCA 166 per McMurdo P and Philippedes J at para 45. 27 See COVA s 25(7). -- 9 of 9 --