Best v Brown [2006] QDC 407

DISTRICT COURT OF QUEENSLAND CITATION: Best v Brown [2006] QDC 407 PARTIES: TODD ALLAN BEST (Applicant) V ZANE JUAN BROWN (Respondent) FILE NO/S: D97/06 DIVISION: Civil Jurisdiction PROCEEDING: Application for Criminal Compensation ORIGINATING COURT: District Court, Beenleigh DELIVERED ON: 8 December 2006 DELIVERED AT: Beenleigh HEARING DATE: 8 November 2006 JUDGE: Tutt DCJ ORDER: The respondent pay to the applicant the sum of $7,500.00 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 29 April 2005. CATCHWORDS: Criminal compensation – serious assault – “spitting on police officer” - mental or nervous shock. Criminal Offence Victims Act 1995 ss. 24, 25(6) and (7) and 31. Ferguson v Kazakoff [2000] QSC 156. SOLICITORS: Mr A Ebbott for Gilshenan & Luton Lawyers for the applicant. No appearance for the respondent. -- 1 of 7 -- 2 Introduction [1] In this application Todd Allan Best (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury he sustained arising out of the criminal conduct of Zane Juan Brown (“the Respondent”) who was convicted by the District Court at Beenleigh on 29 April 2005 for a number of offences including the offence of serious assault to the Applicant on 15 January 2004. [2] The respondent, although being served with the application and supporting documents made no appearance at the hearing. [3] The application for compensation is made pursuant to section 24 of the Act and is supported by the following material:- (a) the affidavit with exhibits of the applicant sworn 8 August 2006 and filed in this court on 24 August 2006; (b) the affidavit with the exhibits of Leena Maree Gatti, paralegal sworn 22 August 2006 and filed in this Court on 24 August 2006; and (c) the affidavit with exhibits of Ian Lynagh, psychologist sworn 1 August 2006 and filed in this court on 24 August 2006. Facts [4] The applicant who is a police officer was acting in the course of his employment on 15 January 2004 at the Petrie railway station when the -- 2 of 7 -- 3 respondent spat at him twice in the face during the course of the applicant interviewing the respondent in the Petrie Railway Squad office, as a result of which the respondent’s saliva struck the applicant’s face and eyes1. Injuries [5] The applicant’s injury is described in the St Andrew’s Hospital Priority Emergency Centre Report as “…offender spat at patient hitting cheek (and) to eye”2. [6] The applicant underwent a number of tests for “infectious diseases” and was also “…required to undergo periodic blood tests over the next 12 month period to confirm that I was free of any infectious diseases”3. [7] The applicant claims compensation for psychological injury to himself arising out of the respondent’s actions on 15 January 2004. [8] The applicant states that following his being periodically tested for any infection he “… was finally cleared of infectious diseases on 17 January 2005, one year after the incident”4. [9] He further states that “throughout the whole twelve month period I was nervous and tense regarding the possibility of infection. My anxiety was particularly heightened in the lead up to the periodic tests”5. 1 Applicant’s affidavit filed 24 August 2006. 2 Exhibit LMG-5 to the affidavit of Leena Maree Gatti filed on 24 August 2006. 3 Para 11 of applicant’s affidavit and filed 24 August 2006. 4 Ibid at paragraph [12] -- 3 of 7 -- 4 [10] The applicant further states that following his initial attendance at St. Andrews Hospital he was advised “…that I should refrain from any sexual intercourse during the testing period to prevent transmitting any diseases to my wife. This caused enormous strain on our relationship as at the time of the incident we had only been married for some three or four months”. He further stated that he and his wife “…found it necessary to seek marital counselling from a police chaplain on May 2005”. He further stated that “…this incident has also affected the performance of my duties as a police officer as well as my attitude towards my work”6. [11] The applicant was assessed by Dr Ian Lynagh a psychologist on 15 May 2006, two years and four months post-incident who stated that the applicant “…reported the following consequences of the spitting assault in question: • “Anxiety: Experiencing an ongoing undercurrent of anxiety and worry, concerning the possibility of infection, particularly in the first three months, and increasing around the times of the quarterly tests for the 12 month period. • Intimacy Restriction: Experiencing personal and interpersonal tension caused by the prescribed abstinence from intimate contact with his wife, including sexual intercourse for three months and protected sex for 6 months. • Marital disruption: Three months prior to the assault, Mr Best and his then partner (Tanya) of some 3 years, married with the stated plan of starting a 5 Para [13] of applicant’s affidavit filed on 24 August 2006 6 Ibid at para [14] and [15]. -- 4 of 7 -- 5 family. Both he, and in particular his wife, were distressed about this disruption to their sex life and thereby their plans…” • Attitude to policing: Mr Best reported he was “more tense” in the first few months back at night work. He said that in carrying out his police duties, he is now “far more aware of controlling them (arrestees)…(and) alert to their behaviour”7. [12] The tests carried out by Dr Lynagh of the applicant confirm that he was a person who was “mildly depressed…(and)…mildly anxious”. Dr Lynagh then stated that “this is the profile of a person who at the time (post-assault period) describes experiencing symptoms typically associated with having a mild anxiety/depressive condition”. Dr Lynagh summarises his opinion of the applicant’s condition as “This assessment finds that as a result of the assault, Mr Best suffered: • A period of variable anxiety/depression concerning his health • Significant disruption in his marital intimacy • Significant disturbance in their family planning • And marital relationship tensions. There was no evident (sic) of any traumatisation or clinically significant psychological pathology. As regards his Claim and with reference to the 7 Exhibit IL-2 to the affidavit of Dr Ian Lynagh filed on 24 August 2006. -- 5 of 7 -- 6 Compensation Table Schedule I, in my assessment it is reasonable to estimate Mr Best sustained: • Mental or nervous shock – varying from Moderate intensity (10 – 15% for 3 months, and Minor intensity (5-10%) for 9 months”8. 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; 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 Feguson 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 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). [15] I have referred to the circumstances of the incident in paragraph [4] above and I am of the opinion that the applicant’s behaviour at the relevant time did not either directly or indirectly contribute to the injury complained of by him. 8 Exhibit IL-2 to the affidavit of Dr Ian Lynagh filed on 24 August 2006. -- 6 of 7 -- 7 Category of Injury - Finding [16] On the basis of all of the evidence before me I find that the applicant’s injury falls at the bottom end of item 32 of the categories of injuries in Schedule 1 of the Act, namely “mental or nervous shock (moderate)”. [17] Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injury he sustained on 15 January 2004 in the sum of $7,500 representing 10% of the scheme maximum under item 32 of the Schedule to the Act. [18] I therefore order that the respondent pay to the applicant the sum of $7,500 by way of compensation for the injury he sustained [19] In accordance with section 31 of the Act I make to order as to costs. -- 7 of 7 --