Conway v Ketchup [2002] QSC 284

SUPREME COURT OF QUEENSLAND CITATION: Conway v Ketchup [2002] QSC 284 PARTIES: MICHAEL JOHN CONWAY (applicant) v BEVAN LESLIE KETCHUP (respondent) FILE NO/S: S524 of 2002 DIVISION: Trial PROCEEDING: Application for Criminal Compensation Application to Extend Time ORIGINATING COURT: Supreme Court at Townsville DELIVERED ON: 18 September 2002 DELIVERED AT: Townsville HEARING DATE: 11 September 2002 JUDGES: Cullinane J ORDER: Application dismissed. CATCHWORDS: CRIMINAL LAW – CRIMINAL COMPENSATION – LIMITATION OF ACTIONS - where respondent convicted of grievous bodily harm with intent to do bodily harm – where application not brought within the three year period provided for by s 40 of the Criminal Offence Victims Act 1995 – where applicant has good cause of action for the purposes of s 31 (2) (b) of the Limitations of Actions Act 1974 – whether knowledge of a material fact could be regarded as being of a decisive nature Criminal Offences Victims Act 1995 (Qld) ss 26 (1), 28, 33, 40, and 41 Limitations of Actions Act 1974 (Qld) ss 30(b),31(2) (b) Castlemaine Perkins Ltd v. McPhee (1979) QdR 469 Ferguson v. Kazakoff (2000) QSC 156 (6 June 2000) Jacob v. Roberts (2002) QCA 87 (21 March 2002) Moriarty v. Sunbeam Corporation Ltd (1988) 2 QdR 325 -- 1 of 6 -- 2 COUNSEL: C Hampson QC, with AJ Kimmins for the applicant No appearance for the respondent SOLICITORS: Tony Bailey, Solicitor for the applicant No appearance for the respondent [1] The Applicant applies for Criminal Compensation under the provisions of the Criminal Offence Victims Act 1995. [2] He was born on 6 August 1962 and the offence in respect of which the claim is made was committed on 29 April 1998. The Application was made on 2 September 2001. [3] The Respondent who did not appear on the Application was convicted on his own plea of grievous bodily harm with intent to do grievous bodily harm. He was sentenced on 17 February 1999 to 7 years imprisonment with a recommendation that he be eligible to be released on parole after serving 3 years. [4] The Application was not brought within the 3 year period provided for by section 40 of the Criminal Offence Victims Act 1995. This is a condition of the right to apply for compensation. See Jacob v. Roberts (2002) QCA 87 (21 March 2002). [5] The Applicant seeks an extension of time under the provisions of Section 41 of the Criminal Offence Victims Act 1995. This provides as follows:- 41 (1) The Limitation of Actions Act 1974, sections 30 and 31 apply to applications mentioned in section 40(1) and (2) with the intention that, on application – (a) a court may order that the period of limitation under section 40(1) for an application to which the subsection applies be extended under the Limitation of Actions Act 1974, section 31(2); and (b) the Minister may order that the period of limitation under section 40(2) for an application to which the subsection applies be extended under the Limitation of Actions Act 1974, section 31(2). (2) The Limitation of Actions Act 1974, sections 30 and 31 apply – (a) as if the applications mentioned in section 40(1) and (2) were actions for damages for trespass; and (b) with changes under subsection (1) and all other necessary changes. [6] The intention of the legislature appears obviously enough to apply the provisions of Sections 30 and 31 of the Limitation of Actions Act 1974 with whatever adaptations are necessary. As Senior Counsel for the Applicant contended there is plainly some difficulty in giving direct application to those provisions (which were drawn by -- 2 of 6 -- 3 reference to the elements of causes of action) to a statutory entitlement to compensation arising under the statute which right can be exercised in a relatively informal way. [7] I will return to the question of the extension of the limitation period a little later. [8] The Applicant and the Respondent were both at the time residents of Palm Island. The Applicant was returning to his home in an intoxicated state when he heard the Respondent’s voice come from a house which the Applicant was passing. The Applicant said something to the effect that he wanted to go back to the “big house” and the Applicant spoke to him and asked him what his problem was. The Respondent told him that he wanted to go back to Stuart Creek (a prison) saying ‘that’s my home’. When he was asked what he wanted to do so that he could do that he said ‘I want to kill somebody’. The Applicant said, ‘why do you want to do that? You just came out of Stuart’ and the Respondent said showing a knife to the Applicant that he would want to watch out or he (the Respondent) would stab him and when the Applicant told him to put the knife away the Respondent who had been standing on the stairs walked down the stairs and walked up to the Applicant and stabbed him in the left side. The Applicant lay down on a cement surface and the Respondent came to him and stabbed him a number of times. [9] The Respondent then left saying that he was going to the police to tell them that he had stabbed the Applicant. I am satisfied that the Applicant did not by his conduct contribute to his injuries. [10] The Applicant was taken to the Palm Island Hospital and transferred to the Townsville General Hospital. His condition was serious. He had a stab wound to the left upper quadrant and required an urgent blood transfusion. A laparoscopy was performed during which a laceration to the left lobe of the liver was found as well a very large haemoperiteneum. [11] Post operatively complications developed and it was necessary to return him to the theatre for further exploratory surgery. [12] He was in intensive care until 7 May 1998. [13] His convalescence was a difficult one with a number of complications which required urgent attention. He was in hospital for some three months. [14] The injury is described as a very serious one which would have almost certainly have led to death but for the urgent surgery that was performed. [15] The Applicant’s current complaints are set out in a report of a psychologist, Timothy Dennis Ryan, to whom he related them. [16] The Applicant deposes to ongoing pains in the stomach and says that he has lost his libido. He has extensive scarring on his chest and stomach. Photographs of this are before the Court. [17] He receives an invalid pension. -- 3 of 6 -- 4 [18] According to the psychologist the Applicant suffers a chronic post traumatic stress disorder and panic disorder and dysthymic disorder. The various symptoms of which the Applicant complains and which constitute these disorders include palpitations of the heart, sweating, trembling, shortness of breath, a choking feeling, pain or discomfort in the chest, nausea and abdominal distress, a feeling of dizziness, feelings of unreality or depersonalisation, fear of losing control or dying numbness and chills and hot flushes. [19] There is said to be a loss of enjoyment of life and an inability to work, a change in the Applicant’s personality from a happy outgoing person to an agitated depressed fearful and reclusive individual, and some social dysfunction. He suffers pain in the abdomen. [20] The psychologist suggests that some psychotherapeutic treatment would be of assistance. [21] I accept that the Applicant has serious consequences of the attack upon him particularly of a psychiatric nature. [22] Claims are made under items 26, 28 and 33 of the Schedule to the Act. [23] Section 26(1) of the Act provides as follows:- “26 (1) The purpose of this section is to ensure that, for applications, harm that substantially should be treated as a single state of injury is treated as a single injury, even though it may consist of more that 1 injury or be caused by more than 1 incident.” [24] Although claims are made under separate headings for the stab wound and bodily scarring it seems to these should be subsumed under a singular award of compensation. See s 26(1) of the Criminal Offence Victims Act 1995 and Ferguson v. Kazakoff (2000) QSC 156 (6 June 2000). I would assess compensation in respect of the stab wound and the consequent scarring in the sum of $26,500.00. [25] I accept that the claim for mental or nervous shock answers the description of severe and I would allow the sum claimed at $22,500.00. [26] There is in my view no doubt that the Applicant has a good cause of action for the purposes of Section 31(2)(b) of the Limitation of Actions Act 1974. [27] In argument before me (which on the limitation issue took place in both this and in another matter (Watson v. Poynter) at the same time) two matters are relied upon. [28] The primary argument advanced is that it is said that the Applicant was not aware of the existence of the legislative scheme for the payment of criminal compensation. A report of Mr. Ryan’s relates that the Applicant was unaware that he was able to apply for criminal compensation “for a considerable amount of time following the assault”. -- 4 of 6 -- 5 [29] This seems to be at odds with the Applicant’s affidavit that he was told during the course of the trial of the Respondent (in fact the Respondent pleaded guilty) that he was able to apply for criminal compensation. He went to the Legal Aid Office and was subsequently sent some forms which he returned but he found when following up his application that the Legal Aid Office claimed not to have received his Application. He later attended the office and was told that he should see a Solicitor who was to come back later that day but who was not there at the time. He said this also occurred on a later occasion. He became frustrated at his failure to get anywhere. He speaks of his difficulties and the expense associated with going to and from Palm Island to Townsville. According to him he “gave up hope” at this point. [30] In May 2002 he saw his present Solicitor who he had heard acted for victims of crime and he requested him to act on his behalf. [31] The evidence does not support the claim advanced that the Applicant was unaware of the scheme of criminal compensation. There is an affidavit of the Applicant’s solicitor dealing generally with his experience with clients who are members of aboriginal communities. These remarks are of no real assistance in this case. The Applicant was aware of his rights to apply for compensation from an early stage. Whilst one can sympathise with the frustrations he encountered, no issue based upon a lack of knowledge of his rights or the existence of the scheme is raised on the evidence. [32] Mr. Ryan’s statement speaks of the Applicant’s difficulty in “decision making” which would have impeded any decision to seek compensation and that this would have been exacerbated by certain factors which are mentioned. [33] I was at one time concerned that these matters might raise an issue of the Applicant’s incapacity so as to place him under a legal disability. However I do not think the evidence goes this far. [34] A secondary matter relied upon was that the Applicant only became aware that he suffered a psychiatric problem identified by Mr. Ryan, the psychologist, when Mr. Ryan provided a report the mid 2002. [35] The Applicant, it can be accepted, did not know that he had such a condition until this report was provided nor that it would be likely to persist. [36] However the Applicant related to Mr. Ryan the various problems that he had which Mr. Ryan identified as constituting the disorders referred to. [37] Whilst the knowledge arising from Mr. Ryan’s report is knowledge of a material fact the difficulty in my view is whether it can be regarded as being of a decisive nature. [38] The test to be applied under s 30(b) was as Macrossan J (as he then was) said in Moriarty v. Sunbeam Corporation Ltd (1988) 2 QdR 325 at 333: “In cases like the present, an Applicant for extension discharges his onus not simply by showing that he was learnt some new fact which bears upon -- 5 of 6 -- 6 the nature or extent of his injury and would cause a new assessment in a quantitative or qualitative sense to be made of it. He must show that without the newly learnt fact or facts, we would not, even with the benefit of appropriate advice, have previously appreciated that he had a worthwhile action to pursue and should in his own interest pursue it. This is what the application of the test of decisiveness under s 30(b) comes down to.” [39] Applying the objective test to which s 30(b) requires of a person in the Applicant’s circumstances (see Castlemaine Perkins Ltd. v McPhee (1979) QdR 469) it is not possible in my view to regard the opinion of Mr. Ryan as having converted what would otherwise have not been, a worthwhile claim for compensation into a worthwhile claim given the problems which the Applicant had experienced including those which he related to Mr. Ryan. It must be borne in mind that amongst the problems the Applicant had suffered were serious physical injuries and extensive scarring. [40] In my view there is no basis upon which the Court can make the order sought. [41] The Application is therefore dismissed. -- 6 of 6 --