Earthrowl v Dixon [2006] QDC 479

DISTRICT COURT OF QUEENSLAND CITATION: Earthrowl v Dixon [2006] QDC 479 PARTIES: NICOLE LEANNE EARTHROWL Applicant V DARRYELLE ARTHUR DIXON Respondent FILE NO/S: 4113/05 DIVISION: Civil PROCEEDING: Application for criminal compensation ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 11 April 2006 DELIVERED AT: Brisbane HEARING DATE: 2 April 2006 JUDGE: Nase DCJ ORDER: 1. That Darryelle Arthur Dixon pay to Nicole Leanne Earthrowl the sum of $24,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995. 2. The Affidavit of D.A. Dixon dated 16.3.06 and filed on the 17.3.06, is to be sealed in an envelope and not opened unless at the direction of a Judge. CATCHWORDS: COUNSEL: Mr Peters, solicitor, for the plaintiff Mr Kissick for the respondent SOLICITORS: Bruce Peters Lawyers for the plaintiff MA Kent & Associates for the respondent -- 1 of 11 -- 2 [1] This is an application for a compensation order by Nicole Leanne Earthrowl (the applicant) pursuant to the Criminal Offence Victims Act 1995 (the Act). The respondent to the application is Darryelle Arthur Dixon. [2] On 4 March 2004 the respondent was convicted on indictment following his plea to a charge of assault occasioning bodily harm whilst armed. He was sentenced to an 18 month suspended term of imprisonment. [3] The assault occurred in the early hours of 29 March 2003 in an apartment in which the applicant was then living with her young daughter. [4] The applicant and the respondent have lived in a de facto relationship for an extended period of time. At the time of this assault a domestic violence order against the respondent was in force. Some time after the assault they resumed cohabitation. As I understand the applicant’s evidence, the final break up came in March/April 2005, although within their relationship 2 September 2004 is also a significant date as the applicant was wounded, she alleges by the respondent, on that date. I was told he is presently awaiting trial on the charge of unlawful wounding. [5] The assault was sustained and brutal, only ending when the applicant’s daughter escaped from the apartment. When the ambulance arrived the applicant was unconscious and her hair had been roughly cut. A medical report under the hand of a Dr Queenan tendered at the original sentence sets out the applicant’s injuries in detail: “Head 6 lumps spread over scalp No laceration seen -- 2 of 11 -- 3 Hair short and long in places – appears obviously hacked/cut consistent with allegations Metal clips remaining in hair – had plaits/extensions Face Right side: Light purple bruise to right temple laterally above eyebrow 2x2cm Lump 1.5x1.5cm above medial aspect of right eyebrow Dark purple/red around upper lateral aspect of right eyelid and entire lower eyelid No conjunctival haematoma No lacerations around right eye Left side: Large bruise over entire upper and lower eyelids, dark red/purple over medial aspect of upper eyelid extending to lower eyelid Laceration (dermis breached) 2cm to upper left cheek, in infraorbital crease. (This wound was cleared, explored and sutured by Dr Magee.) Nerves around wound intact, face movement normal, wound cleaned. Depth of wound 4mm medially grading to 2mm laterally. Skin edges sharply demarcated and straight. No muscle involved. Sutured with 5x6-0 ethilon nylon sutures. Swollen nasal bone bilaterally and bruising to bridge of nose. Clot in left nostril. No clear fluid leak from nose. No septal haematoma. Clinically suggestive of fractured nose. Jaw -- 3 of 11 -- 4 Large swelling 7x4cm to left lower jaw with light purple bruising Difficulty opening mouth No gum tenderness No broken teeth Tenderness over left temporomandibular joint Lips No outer bruises Purple bruises to central portion of upper, and lower of lips, and to inner left cheek No lacerations seen inside mouth Left ear Abrasion to upper part of pinna – 2mm Abrasion 2mm to upper outer part external auditory canal No clear fluid from ear, no blood behind eardrum Right ear normal Neck No bruise to neck No cervical spine tenderness Normal range of movement Spine/Back No bruises to soft tissues of back -- 4 of 11 -- 5 Tender spine at approximately level of thoracic spine 10, swelling 2x3cm to same area Right upper limb Graze 1.5x1.5cm to posterior shoulder 3 small light purple bruises to posterior shoulder 2 small light purple bruises to inner aspect of upper arm 1x2cm 2 bruises with swelling 1x2cm to inner forearm Missing all fake nails except index finger, glue remaining on other fingers 2cm abrasion over dorsal surface of distal interphalangeal joint of the third finger. (This wound was cleaned, explored and sutured by Dr Magee.) Movement of finger normal. Sensation intact on formal testing (light touch/pain) distal to wound, however, patient states she has paraesthesia/altered sensation. Wound cleaned and explored. Depth of 2mm to subcutaneous tissue. No extension into extensor tendon/sheath/joint capsule. Wound sutured with 2x5-0 nylon sutures. Left upper limb 2 light purple bruises 1x1cm each around outer elbow 2 bruises 1x12cm to lateral forearm Swelling over dorsum of left hand approximately over second and third metacarpal bones Bruise 2x1cm lateral to this swelling -- 5 of 11 -- 6 Left hand palmar surface – small superficial abrasions to thumb, index finger, middle finger and palm over fifth metacarpophalangeal joint. No sutures required All fake fingernails absent except thumb. Glue remains on other nails Chest/Abdomen Light red bruise and swelling 1.5x6cm lateral and inferior to nipple Left nipple 2 small semicircular abrasion 5mm long each, right abrasion deeper than left, to lower margin of areolar, consistent with patient’s claim the attacker bit her on the breast Small graze to left side midline of abdomen above umbilicus Genitals Small 2mm bruise to right side of metal piercing in clitoris Blood around both ends of piercing Left lower limb 1x1cm dark purple bruise and 1.5x3cm deep purple bruise to left inner thigh 1x1cm bruise to inferior aspect of patella (knee cap) Bruise 1x1cm to anterior tibia (shin bone) Light purple bruise to dorsum (top surface) of foot near ankle joint 1.5x1.5cm Right leg Lateral thigh swelling 10x20cm Light bruise over same area -- 6 of 11 -- 7 3 small bruises to medial inferior patella Neurology GCS 15 Pupils equal and reactive to light Cranial nerves – movement, sensation normal Upper limbs and lower limbs power/tone/sensation/ reflexes all normal” [6] At the sentence a number of photographs of the applicant were tendered. A copy of those photographs is attached to the judgment. The photographs show the injuries to the applicant’s face and body. [7] I am satisfied the applicant suffered 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. [8] Under the legislative scheme established by the Act 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)). -- 7 of 11 -- 8 [9] Bruising/lacerations are dealt with in items 1 and 2 of the compensation table. Item 1 is for minor/moderate cases and item 2 is for severe cases. I am satisfied the bruising/lacerations to the applicant fall in the severe category. The range provided for item 2 injuries is 3-5 per cent of the scheme maximum. In the circumstances 5 per cent is allowed for this item. [10] Mr Peters, who appeared on behalf of the applicant, argued for a separate allowance under item 3 (fractured nose, no displacement). Mr Kissick, who appeared for the respondent, submitted the evidence did not support a conclusion the applicant suffered a fracture to her nose in the assault. Mr Peters’ submission is based on the following passage in the original medical report from Dr Queenan: “Swollen nasal bone bilaterally and bruising to bridge of nose. Clot in left nostril. No clear fluid leak from nose. No septal haematoma. Clinically suggestive of fractured nose.” [11] The injuries, including the injury to the nose, healed without complication. No other evidence was placed before the court to confirm the applicant suffered a fracture to her nose. The comment relied on in Dr Queenan’s report occurs in one relatively brief passage, and I am uncertain whether the use of the word “suggestive” means that Dr Queenan’s opinion is that the applicant suffered a fracture to the nose. Ultimately therefore I am uncertain whether the applicant suffered a fracture to the nose. [12] Mr Peters also advanced a claim for mental or nervous shock. Mental or nervous shock is a compensable injury under the Act. This aspect of the claim is based on a report from a psychiatrist (Dr Maguire). Dr Maguire examined -- 8 of 11 -- 9 the applicant on 11 January of this year (2006). Dr Maguire’s opinion is that the applicant, at the time of consultation, suffered from a psychiatric condition (post traumatic stress disorder) to a very severe degree. [13] Both Dr Maguire and the applicant were cross-examined during the hearing. Dr Maguire’s opinion is that while the applicant continued to live with the respondent, in what was a violent and controlling relationship, she managed to function reasonably by a process of dissociation which collapsed after she finally left him. Her reported symptoms at consultation were hypervigilance, flashbacks, avoidant behaviour, extreme security fears, low self esteem, and chronic anxiety. [14] The applicant said in evidence that she had not worked since March/April 2005. She lives at a secret address with her daughter and another woman, and rarely leaves the house. Dr Maguire thought her condition may well be life-long. [15] Mr Kissick’s challenge to the claim for mental or nervous shock is two-fold. Firstly, he challenges the truthfulness of the applicant’s evidence. Secondly, he questions whether the necessary causal link exists between the assault and the applicant’s present condition. [16] While it may be that on some points the applicant is wrong, I accept her evidence of her symptoms is substantially true. It is this part of her evidence that establishes the factual base for Dr Maguire’s opinion. [17] The post traumatic stress disorder identified by Dr Maguire is indivisible in the sense that it cannot be allocated between its various causes. The assault of which the applicant was convicted is one of a number of causes for her present condition. The applicant was the victim of other violence at the respondent’s -- 9 of 11 -- 10 hands, and the victim of violence by other men. Mr Kissick also identified the wounding offence alleged to have been carried out by the respondent in September 2004 as a contributing factor. Mr Kissick’s submission raises questions about both the appropriate test of causation and its correct application to the facts of this case. [18] In Steinback v Steinback (2001) QCA 12 the Court of Appeal adopted a pragmatic approach to causation, formulating a material contribution test for causation issues. Under this test if the conduct made a material contribution to the applicant’s injuries, even if it was not the sole or effective cause of the injury, then the element of causation is satisfied. Applying that test to the present case I note Dr Maguire’s opinion that the charged assault was a significant event in the plaintiff’s life and was sufficient by itself to cause the development of a post traumatic stress disorder. In these circumstances it is difficult to avoid the conclusion the charged assault materially contributed to the applicant’s condition. On all of the evidence I am satisfied the charged offence materially contributed to the development of a post traumatic stress disorder in the applicant. [19] Mental or nervous shock is dealt with in item 31 (minor), item 32 (moderate) and item 33 (severe) of the compensation table. Of those the appropriate category is item 33. The range provided in the compensation table is 20- 34 per cent of the scheme maximum. The two features that are of significance are her inability to work (and indeed her limited capacity to leave the home), and the circumstance that her condition will be difficult to treat. In those circumstances 32 per cent of the scheme maximum is an appropriate allowance for mental or nervous shock. -- 10 of 11 -- 11 [20] The respondent, I was told, denies criminal responsibility for the wounding offence the applicant alleges occurred in September 2004. Dr Maguire’s opinion is that the wounding offence, if it occurred, may have exacerbated the applicant’s underlying post traumatic stress disorder. On general causation principles the allowance for mental or nervous shock will be reduced to eliminate any worsening of the applicant’s symptoms attributable to the later wounding offence. On the state of the evidence the claim for mental or nervous shock will be reduced by 4 per cent of the scheme maximum. [21] The court on a compensation application is required to consider whether any conduct on the part of the particular applicant may have contributed directly or indirectly to the injury suffered by her. In this case there was no conduct on her part that should lead to a reduction in the award to which she is otherwise entitled. [22] The applicant is therefore entitled to an order equivalent to 33 per cent of the scheme maximum ($24,750). Order [23] That Darryelle Arthur Dixon pay to Nicole Leanne Earthrowl the sum of $24,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995. -- 11 of 11 --