Farragher v Daly [2005] QSC 277

SUPREME COURT OF QUEENSLAND CITATION: Farragher v Daly [2005] QSC 277 PARTIES: SARAH ANN FARRAGHER (applicant) v ASHLEY JOHN DALY (respondent) FILE NO/S: SC No 388 of 2002 DIVISION: Trial PROCEEDING: Application ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 30 September 2005 DELIVERED AT: Townsville HEARING DATE: 30 September 2005 JUDGE: Cullinane J ORDER: Order the respondent to pay the applicant by way of compensation pursuant to the Criminal Offence Victims Act 1995 (Qld) as amended the sum of $42,750 CATCHWORDS: CRIMINAL LAW AND PROCEDURE – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR RESTITUTION AND COMPENSATION – QUEENSLAND – where the respondent pleaded guilty to offences of burglary and grievous bodily harm – where applicant suffered serious injuries to her head and face – where applicant seeks criminal compensation for injuries sustained CRIMINAL LAW AND PROCEDURE – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR RESTITUTION AND COMPENSATION – QUEENSLAND – where applicant advanced a claim for moderate mental or nervous shock – whether descriptions in affidavit and to doctor amount to more than the natural human response to a horrifying experience so as to be compensable Criminal Offences Victims Act 1995 (Qld), s 26, sch 1 Riddle v Coffey [2002] QCA 337, followed R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320, followed -- 1 of 6 -- COUNSEL: C Thomson (sol) for the applicant No appearance for the respondent SOLICITORS: Legal Aid Queensland for the applicant No appearance for the respondent [1] The applicant seeks criminal compensation pursuant to the Criminal Offence Victims Act 1995 (Qld) (‘the Act’) as amended for injuries sustained by her as a result of an assault upon her by the respondent at Magnetic Island on or about 18 November 1997. [2] The respondent did not appear on the application. [3] The respondent pleaded guilty on 18 February 1999 in the Supreme Court at Townsville to offences of burglary and grievous bodily harm. He was sentenced to a period of eight years imprisonment on the count of grievous bodily harm and a lesser term for the count of burglary. A declaration that he was a serious violent offender was made in respect of the count of grievous bodily harm. The terms of imprisonment were to be served concurrently. [4] The applicant had been travelling around Australia and was at the time working at a backpackers' resort on Magnetic Island. She was provided with accommodation in the form of what is described as a camp-o-tel which she was sharing with a female friend. A camp-o-tel is a tent-like structure which is in the nature of a fixture. [5] On the evening of 17 November 1997 she had been drinking at the bar area with her friend but left the bar at about 11 pm to go to bed leaving her friend at the bar. [6] The respondent was visiting Magnetic Island and had spent some time on the evening of the 17 November 1997 with friends at another part of Magnetic Island where he consumed alcohol and cannabis. He and one of his friends came to the resort where the applicant worked at about 10 pm and at some time his friend left him and went outside to a moke in which they had travelled to the resort and went to sleep. He was apparently awakened by someone from the motel who told him to move the moke because it was blocking access to an ambulance. [7] At about this time he saw the respondent running towards him and the respondent said to him something to the effect that they should leave and go back to another resort where they had been earlier that night. [8] A person staying at the backpacker's resort, one Chadwick, had heard a loud banging noise and after about a minute went to investigate. When he realised it was coming from the complainant's camp-o-tel he went there and shone the torch onto the floor inside the cabin. He was attacked by the respondent who then ran off. He commenced to give chase but returned to the complainant who was lying on the floor of the camp-o-tel with blood on the head and obvious injuries to her head and face. The complainant was able to speak to Chadwick's partner saying: "Don't let him hit me. Please don't let him hit me." She was -- 2 of 6 -- found to have a Glasgow coma score of 14 when the ambulance officer spoke to her. Her eyes were closed but she was able to answer questions. [9] It is plain that she had been assaulted with a large rock found nearby and which had caused serious injuries to her head and face. [10] The Court in this matter has the benefit of a very careful and extensive summary of the injuries sustained by the applicant. These are contained in the applicant's outline. When she was admitted to hospital she was observed to be suffering from the following: • Large ragged laceration seven centimetres in length over the left frontal area of the scalp and a ragged laceration four centimetres in length over the middle of the forehead (both extended deep in the subcutaneous tissue); • Left eye grossly swollen - visual acuity appeared normal; • Superficial lacerations above the left eye; • Laceration of left ear; • Clinical fracture over the left maxilla; • Swelling over the right parieto-occipital region; • Laceration to the upper lip; • Damage to teeth - first right upper incisor missing and second incisor very loose • Compound fracture of the middle phalanx of the left middle finger with disruption of the extensor tendon to that finger - also a laceration over the proximal phalanx of the same finger on the flexor surface A cat scan of the applicant's brain and facial bones revealed: • A right subdural haematoma; • Multiple facial fractures involving the frontal sinus, left orbit and left maxilla [11] The right subdural haematoma was found upon a CT scan as was a fracture of the left frontal bone which was said to be mildly comminuted and displaced and fractures of the left frontal sinus, floor of the left anterior fossa, medial wall of the left orbit, both sides of the nasal arch and floor of the anterior fossa as has been mentioned were indicated. [12] She was examined by a neurosurgeon who considered that notwithstanding the fractures she had sustained and the subdural haematoma, her prognosis was good. In the result the applicant has not been left with any great damage in this regard. -- 3 of 6 -- [13] The applicant after her convalescence returned to England in early February 1998. [14] She has no recollection of the attack upon her which is in a sense fortunate as it means that amongst the psychological sequelae of the accident is not a reliving of the circumstances of the assault itself. [15] In her affidavit she sets out in detail her symptoms following the assault and her convalescence from them and it is not necessary for me to set these out in any detail. [16] She also sets out the current symptoms from which she suffers both physical and psychological. There are also reports which have been obtained for the purposes of this claim. These include a report of Dr Khoo, a consultant plastic surgeon, dated 12 October 2004; Dr Rees, a consultant psychiatrist, whose report is dated 26 January 1998 and Dr Patrick James who is a consultant oral and maxilla facial surgeon whose report is dated 10 July 2003. There are facsimile messages passing between a Dr Mankoo who is described as a restorative cosmetic and implant dentistry surgeon and the applicant's solicitor. There is also a report from Dr Khan, of the Department of Neurology and Neurorehabilitation at the Royal Birkshire and Battle Hospital. An MRI carried out at that hospital in August 2004 was normal. [17] The applicant returned to Australia in 2003 for a holiday. Whilst here she was seen by Dr Stephenson, a consultant psychiatrist attached to the Cairns Base Hospital. Following her return to England in 1998 she obtained employment and met and became engaged to a man. At the time she saw Dr Stephenson she was to marry in August that year. [18] However, it seems that upon her return to England the relationship was terminated. [19] It is plain that she has made a very good recovery from very serious injuries. She has no brain damage and, according to Dr Stephenson, has no diagnosable psychiatric disorder now. Dr Stephenson speaks highly of the motivation and strength of character which she has shown and which has enabled her to make the recovery which she has. [20] Nonetheless, there are a number of significant sequelae of the crime committed upon her. [21] Again, these are summarised in the extensive outline to which I have referred and claims are advanced under a number of different items in Schedule 1 of the Act. [22] A claim is advanced under Item 32 Mental or nervous shock (moderate). I accept what is said about the applicant's psychological consequences observed by Dr Stephenson and by what the applicant herself says in her affidavit. [23] It is not surprising that she suffers a lack of confidence, has undergone changes to her personality and is wary in her dealings with people. She speaks of a -- 4 of 6 -- lowering of self-esteem and self-worth and some reduction in her motivation levels. I accept all of these. The psychological impact upon her was obviously much greater initially and as Dr Stephenson has said, she has been well rewarded for the bravery which she has shown in facing up to her problems and overcoming them. [24] Dr Stephenson's conclusion is that the incident has made her more cautious, less trusting and inclined to take more care of personal safety but she does not see these restrictions as being of great significance since the applicant has managed to become outgoing again and successful in her work. There was no fear of psychiatric regression in the future. [25] Whilst it might be said that the matters which the applicant describes to Dr Stephenson and in her affidavit are no more than the natural human response to what must have been a horrifying experience - that is, the realisation of the injuries and learning how they had been inflicted - and thus not compensable in accordance with the principles in R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320, the report of Dr Rees suggests that the applicant at that time was exhibiting a mild post-traumatic stress reaction when he saw her and I am prepared to accept that the continuation of the symptoms, albeit now improved, should be attributed to this reaction. It seems to me that this falls on the compensable side of the line which Thomas JA spoke of in R v Kazakoff; ex parte Ferguson. Dr Stephenson's favourable opinion of the applicant suggests that she is likely to make further improvement in overcoming her difficulties. [26] I think that the claim advanced under this head is a reasonable one and I allow 12 per cent of the statutory maximum or a sum of $9,000. [27] I think that in respect of the other claims which are advanced, it can be said that they are by and large reasonable and not overstated and, subject to some qualifications which I will refer to, I propose to make the allowances broadly as claimed. [28] There is a claim under Item 17 Fracture/loss of use of finger. There has been some damage to the applicant's left middle finger with a consequent loss of movement. This causes the applicant some difficulties in certain circumstances; when she becomes tired, whilst typing and also in cold weather. There are other circumstances also in which it causes her some inconvenience. I would allow five per cent of the statutory maximum, an amount of $3,750. [29] There are claims under Items 2, 5 and 8. [30] Item 8 is Facial fracture (severe). The claim under this item is intended to embrace the multiple facial fractures that I have already described. As a result she has suffered some loss of movement of and hyperesthesia in her face. This leaves her with some twitching of the muscles on the left side of her face and the eye and a loss of sensation in the left forehead and the left cheek. Dr Stephenson says that at first sight the facial injuries are not obvious but she notes a slight asymmetry of her features with a drooping of the left side of her face and mouth. The consequences of these injuries are annoying to her. There is some scarring of the forehead, left cheek, left ear and upper lip and these are -- 5 of 6 -- to be compensated for under the same head. There is a separate claim however for lacerations to various parts of the applicant's face and head made under Item 2. [31] I think that consistent with what was said by Thomas JA in R v Kazakoff; ex parte Ferguson, by the Court of Appeal in Riddle v Coffey [2002] QCA 337 and with the provisions of section 26 of the Act, it would be appropriate to include an allowance for these under Item 8 as being injuries closely associated with the more serious injuries in the form of the fractures. [32] The scarring which is claimed under Item 8 is plainly the consequence of the lacerations in respect to which the separate claim under Item 2 is made. [33] I think that the claim for the damage to and loss of teeth falls into this category as well. This involves the loss of two teeth and is plainly associated with the fractured facial bones and should be compensated for under the same item. The applicant I recognise has had considerable difficulty as a result of these injuries and has incurred significant expenses in relation to her dental problems. [34] I think that it would be appropriate to allow the maximum under Item 8, namely 30 per cent of the statutory maximum or an amount of $22,500, to make allowance for all of these factors. [35] There is a claim under Item 9 Fractured skull/head injury (no brain damage). This of course relates to the fractured left frontal bone which was somewhat comminuted and displaced and for the subdural haematoma which is associated with it. She suffers some headaches and it appears has had some difficulty with her memory. I have referred to the very good recovery that she has made. I propose to allow 10 per cent of the statutory maximum or an amount of $7,500. [36] The total of the claims of compensation then is $42,750. I order the respondent to pay the applicant by way of compensation under the Criminal Offence Victims Act 1995 (Qld) as amended the sum of $42,750. -- 6 of 6 --