Bennett v Parker [2006] QDC 488

DISTRICT COURT OF QUEENSLAND CITATION: Bennett v Parker [2006] QDC 488 PARTIES: DARREN GREGORY BENNETT Applicant V JOHN PARKER THOMSON Respondent FILE NO/S: BD2635/06 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 1 December 2006 DELIVERED AT: District Court, Brisbane HEARING DATE: 22 November 2006 JUDGE: Nase DCJ ORDER: That John Parker Thomson pay to Darren Gregory Bennett the sum of $27,600 by way of compensation pursuant to the Criminal Offence Victims Act 1995. CATCHWORDS: COUNSEL: Mr A. Maher for the applicant SOLICITORS: Trilby Misso Lawyers for the applicant [1] This is an application for a compensation order by Darren Gregory Bennett (the applicant) pursuant to the Criminal Offence Victims Act 1995 (the Act). The respondent to the application is John Parker Thomson. -- 1 of 8 -- 2 [2] The respondent has chosen not to appear or to be represented at the hearing of the application. As a consequence, the hearing proceeded in his absence and solely on the materials placed before the court by the applicant. [3] The respondent was convicted and sentenced in the District Court at Brisbane of doing grievous bodily harm to the applicant. He entered a plea of guilty on 29 May 2004, although the sentence of four years imprisonment, suspended after 15 months, was not imposed until 3 September 2004. [4] The date of the offence was 9 December 2002. The applicant had recently separated from his partner (Nicole McLean). Their relationship had lasted for about four years. On the day of the offence, after phoning, he arrived to collect some of his property which was still in the house. When he arrived, the respondent, who lived nearby, was in the kitchen with his Nicole McLean. In a sudden flash of anger, driven by feelings of jealousy, he went up to the respondent and placed him in a headlock. The applicant is a much larger man than the respondent. Eventually the respondent, with the help of Nicole McLean, managed to break out of the headlock. By that time, the respondent also was upset. During the struggle, the respondent had grabbed a knife in the kitchen. [5] On the facts placed before the court at sentence, the men challenged each other to fight. The respondent, armed with a knife, said something like “come on, and I’ll kill you”, while the applicant said “drop the knife and fight like a man”. The respondent went outside, and was in the front footpath area when the applicant broke free of McLean’s restraint and left the house to fight the respondent. The respondent struck him on his head with a pipe from a vacuum cleaner; then, as the two men engaged, stabbed the knife into his body just above the hip. The knife wound is the grievous bodily harm on which the charge is based. The respondent -- 2 of 8 -- 3 left to telephone for assistance, leaving the knife in the applicant’s body. When the applicant pulled the knife from his body, he saw his intestines protrude through the wound. [6] On admission to hospital, he was treated for two injuries: a laceration to the back of his head (presumably caused when struck by the piping), and the penetrating wound to the left side of his body. The laceration to the head was fixed by stapling. It healed without complication. The knife wound was a more serious injury. A description of his injuries and their treatment is set out in some detail in a report by a consultant physician (Dr Myers) which was placed before the court. [7] The knife lacerated his kidney, as well as exposing both his intestine and his kidney. The wound was repaired by a laparotomy. At that time, a large haematoma was located on the kidney. He remained an inpatient for two weeks, during which he was in a great deal of pain. For a period of about two months he continued to pass blood clots in his urine. On his discharge from hospital, he was unable to walk with an upright posture. It was about seven months before he was able to return to work. [8] The wound has left him with two medical consequences. Firstly, the emergency laparotomy has left him with a large scar across his abdomen. The scar is 22 centimetres in length and is 1.5 centimetres in width. This scar is quite separate from a small scar at the site of the knife wound. The abdominal scar is unsightly and causes him some embarrassment. [9] Secondly, a large ventral hernia has developed at the site of the wound. Dr Myers measured the hernia as 12 centimetres by 12 centimetres. The hernia causes him discomfort when working (as a panel beater) and limits his physical activities. Dr Myers noted on examination that the hernia was quite protuberant when he sat -- 3 of 8 -- 4 up or when he stood. It is, however, easily reducible. Dr Myers believes he will require surgery for the hernia. The surgery proposed is, however, painful and difficult, and might not be successful, and after it the applicant would probably be unable to work for two to three months. [10] Otherwise, the wound was successfully repaired with no other physical consequences. [11] I am satisfied the applicant suffered a injury or injuries within the meaning of s 20 of the Act, and the offence is a personal offence within the meaning of s 21 of the Act. [12] Under the legislative scheme, a court may make a compensation order up to the scheme maximum in accordance with the provisions of the Act. The method of assessment under the legislative scheme involves associating an injury suffered by an applicant with a corresponding item in a compensation table attached to the Act. The maximum awards of compensation are to be reserved for the most serious cases, and the awards in other cases are to be scaled according to the relative seriousness of the particular injury (s 22(4)). In assessing compensation it is important to be mindful of the principle that the compensation which may be awarded under the Act is intended to help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (s 22(3)). [13] Lacerations are dealt with in the compensation table in items 1 (minor/moderate) and 2 (severe). The ranges provided are 1-3 per cent and 3-5 per cent of the scheme maximum respectively. 1 per cent of the scheme maximum is an appropriate allowance for the laceration to the back of his head. -- 4 of 8 -- 5 [14] The most serious injury is the penetrating wound to his body. Wounds are dealt with in item 24 gunshot/stab wounds (minor), item 25 gunshot/stab wounds (moderate), and item 26 gunshot/stab wounds (severe). The ranges provided are 6-10 per cent, 8-16 per cent, and 15-40 per cent of the scheme maximum respectively. In this case, the wound was life threatening, the recovery was very painful and slow (seven months before he was able to return to work), and he has been left with a large and unsightly hernia for which further surgery is indicated. The combination of those circumstances place the wound in the severe category. I think an allowance in the upper half of the severe range is appropriate. In all the circumstances, 30 per cent of the scheme maximum will be allowed. [15] The large abdominal scar is a direct consequence of the laparotomy, and an indirect consequence of the wound. He is self-conscious about the scar. The scar is a secondary consequence of the wound, and may either be taken into account when assessing an appropriate allowance for the stab wound, or considered as a stand alone injury. If considered as a stand alone injury, care has to be taken not to compensate twice for the wound. The items for facial disfigurement or bodily scarring are items 27 (minor/moderate), and 28 (severe). The ranges are 2-10 per cent and 10-30 per cent respectively. The appropriate item in my view is 27. In all the circumstances, 5 per cent will be allowed for this scar. This gives a total allowance of 35 per cent for the wound and all its consequences. [16] The applicant also claims compensation for mental or nervous shock. Mental or nervous shock is a compensable injury under the Act. For the purposes of this application, a report from a psychiatrist (Dr Byth) and from a psychologist (Jo Erlick) were placed before the court. Erlick saw him five times: her first appointment was on 31 December 2002 and the last 11 February 2003. I accept -- 5 of 8 -- 6 their reports satisfactorily establish the applicant developed a mental or nervous shock as a result of the offence. [17] Erlick said that his symptoms were consistent with an Acute Stress Disorder. He was distressed emotionally, felt unable to trust people, and was fearful. He told Erlick he had difficulty sleeping, cried very easily, and was easily startled. He said he had feelings of anxiety, and experienced difficulty with concentration. Erlick reported that he endeavoured to implement cognitive-behavioural strategies to manage his symptoms. She said he was quite successful with these efforts, and at the time of his final consultation, although still experiencing many anxiety symptoms, no longer met the diagnostic criteria for an Acute Stress Disorder. [18] Dr Byth saw him on 11 October 2005 for a medical legal report. Dr Byth thought that he had developed a post-traumatic stress disorder of mild to moderate severity for the first 12 months after the wounding. At that time his condition improved to one of mild severity. He thought the applicant would benefit from a period of treatment but that he is likely to be left with chronic mild residual post-traumatic stress disorder symptoms. [19] At the time Dr Byth saw him (October 2005), his behaviour was mildly socially withdrawn. His emotional state was mildly anxious and mildly depressed. He had a history of more intense anxiety when he saw knives, and during flashback memories of being stabbed. His thought content was preoccupied with pain and deformity from his hernia and his concern about future surgery. [20] While the above is not an exhaustive summary of the applicant’s symptoms, it does I hope, give an indication of the nature and severity of his emotional or psychological reaction to the offence and injury. -- 6 of 8 -- 7 [21] Mental or nervous shock is dealt with in items 31 (minor), 32 (moderate) and 33 (severe) of the compensation table. The ranges provided area 2-10 per cent, 10-20 per cent, and 20-34 per cent of the scheme maximum respectively. The exercise the court is required to undertake is to endeavour to rank the relative severity of the applicant’s mental or nervous shock. An appropriate allowance for mental or nervous shock is at the top of the minor range, or bottom of the moderate range. In all the circumstances, 10 per cent of the scheme maximum will be allowed for mental or nervous shock. [22] The compensation allowed calculates out as $34,500 (46 per cent of the scheme maximum). In determining an award of compensation the court is required to consider whether any conduct on the part of the applicant may have contributed, directly or indirectly, to the injury suffered by him. In this case, I believe the applicant’s conduct did contribute to the injury or injuries suffered by him.1 [23] The factors relevant to contribution in this case are these: (a) the incident as a whole commenced when the applicant, without any possible justification except misplaced jealous rage, grabbed the respondent inside the house and placed him in a headlock; (b) the respondent subsequently freed himself and left the house armed with the knife As he did so he challenged the applicant to fight, threatening to kill him. When the respondent was outside the yard the applicant went after him in circumstances when it was reasonably foreseeable the respondent might use the knife in any fight. I note in his statement the applicant claimed he did not expect the respondent would use the knife. If he did have such a belief, I do not believe the belief was reasonable. 1 Mr Maher did refer me to a useful discussion of contribution in Hohn v King (2004) QCA 254. -- 7 of 8 -- 8 The applicant therefore initiated the conflict between the two men, both inside the house, and then later outside the house when, to his knowledge on the second occasion, the respondent was armed with the knife. [24] In these circumstances, the award will be reduced by 20 per cent. Order [25] That John Parker Thomson pay to Darren Gregory Bennett the sum of $27,600 by way of compensation pursuant to the Criminal Offence Victims Act 1995. -- 8 of 8 --