Bullock v Summers [2007] QDC 71

DISTRICT COURT OF QUEENSLAND CITATION: Bullock v Summers [2007] QDC 071 PARTIES: KIM MAREE BULLOCK (Applicant) V VANCE EVERARD SUMMERS (Respondent) FILE NO/S: 344/07 DIVISION: Civil jurisdiction PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Beenleigh DELIVERED ON: 19 April 2007 DELIVERED AT: Brisbane HEARING DATE: 29 March 2007 JUDGE: Tutt DCJ ORDER: The respondent pay the applicant the sum of $29,250.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 31 January 2006. CATCHWORDS: CRIMINAL COMPENSATION – where respondent unlawfully assaulted applicant – where applicant sustained injuries including bruising, fractured nose and fractured cheek bone – whether applicant sustained mental or nervous shock. Criminal Offence Victims Act 1995 ss. 24, 25(4) and 31. Dooley v Ward [2000] QCA 493. Ferguson v Kazakoff [2000] QSC 156. COUNSEL: Mr S. Barry for the applicant. No appearance for the respondent. SOLICITORS: Keith Scott & Associates Solicitors for the applicant. -- 1 of 9 -- 2 Introduction: [1] The applicant, Kim Maree Bullock claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injuries she sustained arising out of the criminal conduct of the respondent, Lance Everard Summers, who was convicted by the District Court at Beenleigh on 31 January 2006 for unlawful assault to the applicant on 4 July 2004. [2] The respondent, although being served with the application and supporting documents, made no appearance at the hearing and did “……not desire to take any part in (the) proceedings”.1 [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 24 November 2006 and filed in this court on 7 February 2007; (b) the affidavit with exhibits of Samit Smith, Solicitor, sworn 6 February 2007 and filed in this court on 7 February 2007; (c) the affidavit with exhibit of Dr Mathew Voltz, Maxillofacial Surgery Consultant, sworn 5 September 2006 and filed in this court on 7 February 2007; 1 Paragraph 3 of Exhibit “A” to the affidavit of Timothy Feely filed 26 February 2007. -- 2 of 9 -- 3 (d) the affidavit with exhibit of Dr Chit Chit, Medical Practitioner, sworn 25 August 2006 and filed in this court on 7 February 2007; (e) the affidavit with exhibit of Geoffrey Leonard Grantham, Clinical and Forensic Psychologist, sworn 18 July 2006 and filed in this court on 7 February 2007. Facts: [4] The circumstances of the offence were that the applicant and respondent were in a relationship. In the days preceding the date of the offence the respondent had lost his temper and slapped the applicant in the face with his hand and struck her in the back of the head with a bottle.2 As a result the respondent left the house that they were sharing. [5] Two days after the above incident the respondent returned to the applicant’s address for a discussion which led to an argument, threats of violence and finally a violent altercation. The respondent yelled abuse at the applicant and then struck her in the face with a clenched fist. He then demanded money from the applicant which she refused. The respondent then punched the applicant in the head and the face and ripped her shirt to remove money she had hidden on her person.3 [6] The applicant describes being assaulted by the respondent in the following terms: 2 Page 2 of Exhibit “A” to the affidavit of the applicant filed 7 February 2007. 3 Ibid at pages 4-5. -- 3 of 9 -- 4 “Vance then swung his right hand at my head. I remember he struck me in the head three times. Once to the side of the head and then twice to the face. Each time I felt severe pain to the areas that he struck me in. I felt my face start puffing up instantly. I also felt blood start running down my face. I put my hands up to my face to protect myself and could see blood all over my hands.”4 The respondent then ripped her shirt and took the money the applicant had hidden in her bra. Injuries (physical): [7] The applicant’s injuries are described by Dr Chit Chit in the following terms: 5 “1. left black eye - periorbital haematoma, 3x3cm area of bruising around periorbital area; 2. nose bleeding; 3. 1 x 1cm bruise on nose; 4. neck pain; 5. pain in head – occiput and temporal area.” [8] The applicant was also seen at the Maxillofacial Outpatients clinic at the Princess Alexandra Hospital on 5 July 2004. Dr John Cosson described her injuries as “……left periorbital haematoma, paraesthesia of her left infraorbital nerve, her nose was deviated from the right side and she was suffering from epiphora”. Radiographic examination of the applicant showed “……a left 4 Page 5 of Exhibit “A” to the applicant’s affidavit filed 7 February 2007. 5 Page 1 of Exhibit “A” to Dr Chit Chit’s affidavit filed 7 February 2007. -- 4 of 9 -- 5 orbital rim fracture with a depressed fracture of the frontal process of maxilla and a fracture of the nose”.6 Mental or Nervous Shock [9] The applicant also claims compensation for a psychological injury arising out of the assault by the respondent. [10] The applicant was assessed by Mr Geoffrey Grantham, psychologist, on 4 July 2006 (2 years post injury). [11] Mr Grantham opined: “The symptoms Ms Bullock experienced after the assault are typical of assault survivors and include ongoing fear of harm, avoidance, sleep and mood disturbance, excessive vigilance, social withdrawal, damaged self-esteem, a loss of trust in others, mental preoccupation with the assault and ongoing worry. In addition she experienced physical pain, a change in her appearance and humiliation”. 7 [12] Mr Grantham further observed: “……Ms Bullock suffered post-traumatic stress disorder after the assault and has been making a gradual recovery since that time. The most prevalent ongoing symptoms are fear and avoidance, including avoiding involvement with males. These symptoms have a day to day negative impact on her life, she cannot tolerate darkness, is no longer able to move freely within the community, relies on others to accompany her on certain journeys, keeps her home closed and locked up, and no longer maintains friendships”.8 6 Page 1 of Exhibit “A” to the affidavit of Dr Mathew Voltz filed 7 February 2007. 7 Page 7 of Exhibit “A” to the affidavit of Mr Geoffrey Grantham filed 7 February 2007. 8 Ibid. -- 5 of 9 -- 6 [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; what must be proved is “(an) injury to health, illness, or some abnormal condition of mind or body over and above that of 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. Applicant’s Contribution [14] In deciding the amount of compensation payable to the applicant the court 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). [15] I have referred to the circumstances of the incident in paragraphs [4], [5] and [6] 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. Categories of Injuries [16] It is submitted on behalf of the applicant that her injuries fall under the following categories of injury in Schedule 1 of the Act, namely: 1. Items 1 and 2 – Bruising/laceration (minor/moderate or severe) (percentage of scheme maximum 1% - 5%); and -- 6 of 9 -- 7 2. Items 3 and 4 – Fractured nose (no displacement or displacement/surgery) (percentage of scheme maximum 5% - 20%); and 3. Item 7 – Facial fracture (moderate) (percentage of scheme maximum 14% - 20%); and 4. Item 32 – Mental or nervous shock (moderate) (percentage of scheme maximum 10% - 20%). The respective amounts claimed by the applicant under the above categories are: (1) 3% $ 2,250.00 (2) 12% $ 9,000.00 (3) 14% $ 10,500.00 (4) 10 to 20% $ 7,500.00 to 15,000.00 Total Claim $ 36,750.009 [17] On the basis of all 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 percentages applicable to those injuries namely: (a) Item 1 – bruising laceration (moderate) – based upon the applicant’s own evidence contained in her affidavit; the evidence of Dr Chit Chit; Dr John Cosson and Dr Mathew Voltz, Maxillofacial Surgery Consultant – percentage applicable 3%; 9 Page 10 of applicant’s submissions. -- 7 of 9 -- 8 (b) Item 4 – fractured nose (displacement/surgery) – based upon the applicant’s own evidence contained in her affidavit and the report of Dr John Cosson – percentage applicable 12%; (c) Item 7 – facial fracture (moderate) – based upon the applicant’s own evidence contained in her affidavit and the report of Dr John Cosson – percentage applicable 14%; (d) Item 32 – mental or nervous shock (moderate) – based upon the applicant’s own evidence contained in her affidavit and the report of Mr Geoffrey Grantham - percentage applicable 10%. [18] I therefore assess the quantum of the applicant’s compensation for bodily injuries she sustained on 4 July 2004 as follows: (a) In respect of item 1, the sum of $2,250 representing 3 per cent of the scheme maximum; $2,250.00 (b) In respect of item 4, the sum of $9,000 representing 12 per cent of the scheme maximum; $9,000.00 (c) In respect of item 7, the sum of $10,500 representing 14 per cent of the scheme maximum; $10,500.00 (d) In respect of item 32, the sum of $7,500 representing 10 per cent of the scheme maximum. $7,500.00 TOTAL $29,250.00 -- 8 of 9 -- 9 [19] I therefore order that the respondent pay to the applicant the sum of $29,250.00 by way of compensation for the injuries she sustained [20] In accordance with s 31 of the Act, I make no order as to costs. -- 9 of 9 --