Derrick v Crow [2006] QDC 490

DISTRICT COURT OF QUEENSLAND CITATION: Derrick v Crow [2006] QDC 490 PARTIES: JOHN DERRICK Applicant V DANNY ROBERT CROW Respondent FILE NO/S: BD385/06 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 1 December 2006 DELIVERED AT: Brisbane HEARING DATE: JUDGE: Nase DCJ ORDER: That Danny Robert Crow pay to John Derrick the sum of $23,250 by way of compensation pursuant to the Criminal Offence Victims Act 1995. CATCHWORDS: COUNSEL: Mrs J Fadden for the applicant SOLICITORS: Legal Aid Office (Qld) for the applicant [1] This is an application for a compensation order by John Derrick (the applicant) pursuant to the Criminal Offence Victims Act 1995 (the Act). The respondent to the application is Danny Robert Crow. -- 1 of 7 -- 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 materials placed before the court by the applicant. [3] On 6 March 2003 the respondent was convicted on indictment in the District Court at Brisbane of doing grievous bodily harm to the applicant. He was sentenced to a term of imprisonment. [4] At the time the applicant was working as a deckhand on a commercial fishing boat. The respondent was working on another boat. Both boats were fishing the remote Kirke River area of Cape York. Unfortunately there was bad blood between the two boat owners, which had resulted in ongoing conflict between the boats. [5] On this occasion a dingy used by the applicant became stuck on a sandbank as he was returning to the boat. The respondent and another man named Gray approached the applicant and verbally threatened him. Gray was holding a rifle, which he pointed directly at the applicant. The two men (Gray and the respondent) then landed on the sandbank, where the respondent assaulted the applicant. During the assault he was punched and kicked about the head and body. He suffered fractures to his jaw in the assault. [6] I am satisfied the applicant suffered an injury 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. [7] 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 -- 2 of 7 -- 3 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 the applicant may be entitled at common law (s 22(3)). [8] The claims advanced in this case are for bruising/lacerations under item 1 (1 per cent), facial fracture (moderate) under item 7 (15 per cent), and mental or nervous shock (moderate) under item 32 (18 per cent). [9] I agree it is reasonable to allow 1 per cent of the scheme maximum for the general bruising suffered by the applicant. He was punched repeatedly and kicked while lying in a defensive posture on the ground. [10] Reports by the maxillofacial registrar at the Cairns Base Hospital (Dr Oberdan), and by Dr Hing (an oral and maxillofacial surgeon), and Dr Vlachodimitropoulos (a prosthodontist) were placed before the court in support of the claim for a fracture to the jaw. [11] On being transported to the Cairns Base Hospital, x-rays revealed the applicant had suffered bilateral jaw fractures and a fractured tooth. The jaw was repaired at the Calvary Hospital, Cairns, by the insertion of titanium plates and screws. The jaw has healed successfully, although one of the plates will need to be removed, as it is causing him some discomfort. He lost a number of teeth and has been left with some paraesthesia affecting his lower lip and chin, a consequence of nerve damage. These are not uncommon complications associated with fractures of the jaw. [12] The applicant currently complains of an overbite. The dental investigations confirm he does have a natural overbite, a feature which was further disrupted by his -- 3 of 7 -- 4 bilateral fracture of the jaw bone. However, Dr Vlachodimitropoulos believes the overbite is “unlikely” to have been caused by the assault and was “almost certainly” present before the assault. [13] I agree that 15 per cent of the scheme maximum is an appropriate allowance for the injury to the jaw, together with the associated loss of teeth and paraesthesia. [14] Mental or nervous shock is a compensable injury under the Act. In support of the claim for mental or nervous shock, a report from a consultant psychiatrist (Dr Walton) dated 30 August 2005 was placed before the court. From that report it is clear the applicant developed a psychiatric disorder as a consequence of the attack on him. The reaction he has experienced is in response to the use of the gun, the threats to kill, and to the brutal physical assault by the respondent. The extreme isolation from help and medical assistance heightened the long-term effects of his experience. As the other man (Gray) used the firearm and was responsible for the threats, and the respondent carried out the assault, an issue of causation arises. [15] The test of causation is whether the relevant conduct (the assault on the applicant) made a material contribution to the injury (Steinback v Steinback [2001] QCA 12). Dr Walton, when asked to address this issue in a supplementary report, wrote that in his opinion both the acts of the other man (the use of the gun) and of the respondent (the assault) were each a material cause of the psychological reaction of the applicant. [16] Dr Walton’s opinion is set out at pages 5, 6 of his report: “1. This man has been exposed to a potentially life-threatening and actually physical injurious incident in frightening circumstances. Therefore he has developed incident-specific anxiety, avoidance -- 4 of 7 -- 5 behaviour and re-experiencing phenomena in the form of intrusive memories and nightmares. Thus Mr Derrick would qualify for an unequivocal diagnosis of a post-traumatic stress disorder. 2. I would describe the severity of symptoms as moderate. 3. The post-traumatic stress disorder has persisted from 24 January 2002 to date. Precise prognostication is difficult, especially due to the fact that there has been minimal psychiatric treatment thus far. However, if it were the case that the condition was going to resolve spontaneously, there ought to be more convincing evidence of that than is apparent. There certainly is a risk of long-term symptoms in his case. 5. The attack upon Mr Derrick , which included his sustaining physical injuries and that he was subjected to threats to kill, have left him an easily startled man who has withdrawn socially in order to maximise his protection and feelings of security. He is more prone to irritability and he has experienced lowered mood of suicidal proportions, although that has eased somewhat in intensity. There was persisting insomnia, at least partly attributable to nightmares directly related to the incident. Mr Derrick has adopted a pattern of consuming food when feeling distressed, which has resulted in considerable weight gain. On the one hand, Mr Derrick complains of some difficulty concentrating, and that is borne out by direct observation. On the other hand, those difficulties do not seem to be having a marked impact upon his capacity to persist with tertiary study. The phenomenon is likely secondary to mood -- 5 of 7 -- 6 disturbance. Mr Derrick has experienced a loss of libido, which, along with his general irritability and social isolation, has led to a relationship failure and difficulty establishing a new relationship. Mr Derrick has retreated to live with his parents and his relationship with them, as well as the relationship with his brother, does not appear to be especially troubled. 6. It is now becoming rather belated, which may compromise the effectiveness of psychological counselling, but, in my opinion, that intervention is indicated. At a minimum, I believe this man requires weekly counselling for a period of 12 sessions, the cost of which would be between $1,500 and $2,000. It is at least possible that more extended counselling would be required.” [17] The applicant’s mental state has not prevented him pursuing his tertiary studies. Nor have they compromised his relationships with his parents and brother. He was also able to enter a further de facto relationship after the assault. That relationship failed after two years. He attributes the failure of that relationship to his own irritability. On the other hand, he has been socially isolated, and has compensated for his psychological problems by overeating. His day-to-day life is affected by the symptoms described by Dr Walton. [18] Mental or nervous shock is dealt with in items 31 (minor), 32 (moderate), and 33 (severe) of the compensation table where the ranges provided are 2-10 per cent, 10- 20 per cent, and 20-34 per cent of the scheme maximum respectively. Mrs Fadden, in her written submissions, has suggested that 18 per cent of the scheme maximum is an appropriate award. I agree the range of symptoms, and the length they have persisted place the applicant’s case in the moderate range, however, I think an -- 6 of 7 -- 7 allowance more towards the middle of the moderate range is appropriate. In all the circumstances, 15 per cent will be allowed. [19] The applicant is therefore entitled to an award of 31 per cent of the scheme maximum, which calculates out as $23,250. [20] The court is also required to consider whether any conduct on the part of the applicant may have contributed, directly or indirectly, to the injury or injuries suffered by him. In this case, there was no relevant conduct on the part of the applicant that should result in a reduction to the award to which he is otherwise entitled. Order [21] That Danny Robert Crow pay to John Derrick the sum of $23,250 by way of compensation pursuant to the Criminal Offence Victims Act 1995. -- 7 of 7 --