Colson v Smits [2007] QDC 68

DISTRICT COURT OF QUEENSLAND CITATION: Colson v Smits [2007] QDC 068 PARTIES: CASSANDRA JOY COLSON (Applicant) AND ANTHONY LEE SMITS (First Respondent) AND RICHARD JAMES TORRENS (Second Respondent) FILE NO/S: BD781/07 DIVISION: Civil Jurisdiction PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: Brisbane DELIVERED ON: 19 April 2007 DELIVERED AT: Brisbane HEARING DATE: 10 April 2007 JUDGE: Tutt DCJ ORDER: The Respondents or either of them pay the Applicant the sum of $24,750.00 by way of compensation for injuries caused by the Respondents to the Applicant for which the Respondents were convicted by the District Court at Brisbane on 17 January 2006 and 28 October 2005 respectively. CATCHWORDS: CRIMINAL COMPENSATION – two offenders – robbery in company with personal violence – where applicant and partner attacked at railway station – where applicant sustained bruising and lacerations – where applicant diagnosed with acute post traumatic stress disorder – joint and several liability of offenders. Criminal Offence Victims Act 1995 (Qld) s 26 (6)(7)(8). COUNSEL: Mr A Maher for the applicant. No appearance for the respondents. -- 1 of 8 -- 2 SOLICITORS: Trilby Misso Lawyers for the applicant. Introduction: [1] In this application Cassandra Joy Colson (“the applicant”) claims compensation under part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury she sustained arising out of the criminal conduct of Anthony Lee Smits and Richard James Torrens (“the respondents”) who were convicted by the District Court at Brisbane on 17 January 2006 and 28 October 2005 respectively for the offences of robbery with personal violence and robbery in company with personal violence to the applicant on 17 January 2005. [2] The respondents, although being served with the application and supporting documents, made no appearance at the hearing. [3] The application for compensation is made pursuant to s 24 of the Act and is supported by the following material: (a) the affidavit with exhibits of the applicant sworn 7 February 2007 and filed in this court on 20 March 2007; (b) the affidavit with exhibit of Joanna Lynch, medical practitioner, sworn 15 December 2006 and filed in this court on 20 March 2007; (c) the affidavit with exhibit of Barbara McGuire, psychiatrist, sworn 15 December 2006 and filed in this court on 20 March 2007; (d) the affidavit with exhibits of Amy Sue Marr, solicitor, sworn 16 March 2007 and filed in this court on 20 March 2007; (e) the affidavit of Nigel Peter Silcock, clerk, sworn 22 March 2007 and filed in this court on 4 April 2007; (f) the affidavit of Keith William Stubbins, bailiff, sworn 29 March 2007 and filed in this court on 4 April 2007; (g) the affidavit of Timothy Feely, Deputy Director of Community Services and Development, sworn 2 April 2007 and filed by leave in this court on 10 April 2007. -- 2 of 8 -- 3 Facts: [4] The applicant and her companion were attacked by the respondents at a suburban railway station in Brisbane, as a result of which she was struck several times and sustained various bodily injuries and bruising as set out in the material filed. Injuries: [5] The applicant attended in the first instance at the emergency section of the Mater Hospital where she was examined, treated, and allowed to go home. She subsequently attended on a general medical practitioner, Dr Joanna Lynch, who examined the applicant on “1 March 2005 and then on 8/03/05 and 15/03/05.”1 [6] Dr Lynch states that the applicant’s injuries “…… were both physical and emotional. Physically – she was kicked in her back causing bruising and muscle spasm and had her arm pulled causing persistent acromioclavicular tenderness. She also had tenderness in her cervical spine and tingling in her fingers and had tenderness over the lateral aspect of her ankle necessitating x-rays. Emotionally she was threatened by the attackers with pushing her onto the trainline and by witnessing their attack on her boyfriend and was reliving those experiences in her nightmares and was also experiencing false guilt that she had somehow caused the injuries to her boyfriend because her presence meant he could not get away as quickly.” [7] Dr Lynch further states that the applicant “…… experienced fear that the attackers would find her home and attack her there, from the information in her purse and this meant that she chose to live away from home with her grandmother due to that fear. -- 3 of 8 -- 4 She also experienced avoidance of travel on public transport due to fear of a similar attack. At the time she consulted me she was having persistent nightmares and insomnia, although she did face her fears and go on public transport in March, but this did produce anxiety.” [8] Dr Lynch finally diagnosed “… that Cassandra had acute post traumatic stress disorder which had not resolved prior to her leaving my care. This assault was an unprovoked attack on both her and her boyfriend which significantly traumatised her. The interpersonal nature of the trauma is significant.”2 [9] The applicant consulted Dr Barbara McGuire, psychiatrist, on 15 November 2006 1 year 10 months post incident, who states that the applicant: • “… suffers post traumatic stress disorder. She experiences this to a severe degree and it has been present since the incident. Her symptoms are lessening but her condition remains severe. • She should be treated with further counselling and possibly also see a psychiatrist with a view to commencing her on anti-depressant medication. • That the probability is that she will continue to improve and eventually be symptom free, however, this may take some years.”3 Applicant’s claim: [10] The applicant claims compensation for the following injuries caused by the respondents: 1 Exhibit ASM 7 to the affidavit of Amy Sue Marr and paragraph [47] of the applicant’s statement to police dated 18 January 2005 and Exhibit JL1 to the affidavit of Johanna Lynch filed 20 March 2007. 2 Exhibit JL1 supra. 3 Page 4 of Exhibit BM1 to the affidavit of Dr Barbara Anne McGuire. -- 4 of 8 -- 5 (a) “bruising to the right arm, left arm, left upper leg, left thigh, back and left knee; (b) lacerations to the left elbow, right knee, and left leg; (c) fracture to the right ankle; (d) swelling to the left arm; (e) soft tissue injury to the back causing muscle spasm; (f) severe post traumatic stress disorder.”4 [11] It is submitted on behalf of the applicant that there should be two assessments of compensation under Item 1 of the Compensation Table set out in Schedule 1 of the Act, namely “Bruising/laceration (moderate)”; and further assessments under Items 18, 21, and 33 being “fracture – foot (moderate); back injury (minor); and mental or nervous shock (severe)” respectively.5 Physical injuries: [12] In respect of the applicant’s physical injuries confirmed by the applicant herself including the photographs exhibited to her affidavit; the Mater Hospital emergency department clinical record and Dr Johanna Lynch, it would appear that the applicant suffered injuries to her “right loin – left shoulder and left elbow – numbness in her left fingers three, four and five – right ankle burning tenderness – left shoulder and elbow burning tenderness – right shoulder and ankle and a laceration to her left knee. With respect to the applicant’s “right ankle”, the x-ray report states “there is some soft tissue swelling around the lateral maleolus. A large ankle joint effusion is noted. No fracture was detected.”6 Mental or nervous shock: [13] It is now well accepted that to establish a “mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; 4 See paragraph [6.2] of applicant’s submissions. 5 See paragraph [6.11] of applicant’s submissions. -- 5 of 8 -- 6 what must be proved is “(an) injury to health, illness, or some abnormal condition of mind or body over and above the normal human reaction or emotion following a stressful event” as distinct from “… fear, fright, unpleasant memories or anger towards an offender …” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraphs [15], [17], and [21] respectively. Findings on categories of injury: [14] On the basis of all of the evidence before me, I make the following findings in respect of the categories of injury under which the applicant’s respective injuries fall and the percentage applicable to those injuries namely: (a) Item 1 – Bruising/laceration (minor/moderate) based upon the applicant’s own evidence contained in her affidavit and exhibits and the supplementary evidence referred to in paragraph [12] above and in this respect I find that the applicant is entitled to one assessment only under this item (not two), as the compensation table does not allow for “Bruising/laceration” to various parts of the body to be compensated separately but rather the defined injury being considered as a composite injury applicable to the body as a whole – percentage applicable 3%; (b) Item 21 – neck/back/chest injury (minor) – based on the applicant’s own evidence contained in her affidavit and the supplementary evidence referred to in paragraph [12] above – percentage applicable 5%; (c) Mental or nervous shock (severe) – based on the applicant’s own evidence contained in her affidavit and the evidence of the psychiatrist Dr Barbara 6 Exhibit ASM 7 supra. -- 6 of 8 -- 7 McGuire contained in her report exhibited to her affidavit filed 20 March 2007 – percentage applicable 25%. [15] I further find that the applicant is not entitled to compensation under Items 18 or 19 of the Compensation Table contained in Schedule 1 of the Act as the evidence is quite clear that she did not suffer any “fracture to right ankle”.7 [16] I therefore assess the quantum of the applicant’s compensation for the bodily injuries she sustained on 17 January 2005 as follows: (a) In respect of Item 1, the sum of $2,250 representing 3% of the scheme maximum; $2,250.00 (b) In respect of Item 21, the sum of $3,750 representing 5% of the scheme maximum; and $3,750.00 (c) In respect of Item 33, the sum of $18,750 representing 25% of the scheme maximum. $18,750.00 TOTAL $24,750.00 Applicant’s contribution: [17] 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). [18] I have referred to the circumstances of the incident in paragraph [4] above and I find that the applicant’s behaviour at the relevant time did not either directly or indirectly contribute to the injury complained of by her. 7 Paragraph [12] supra and the x-ray report in Exhibit JL1 supra. -- 7 of 8 -- 8 Liability of respondents: [19] As both respondents were convicted of the respective offences against the applicant, there is no evidence before me to suggest that the “direct and material contribution” of each offender to the applicant’s injuries was different in kind or degree from that of the other and I therefore find that the respondents are jointly and severally liable for the payment of compensation to the applicant. [20] I therefore order that the respondents or either of them pay to the applicant the sum of $24,750.00 by way of compensation for the injuries she sustained. [21] In accordance with s 31 of the Act, I make no order as to costs. -- 8 of 8 --