Beardsley v Loogatha [2001] QCA 438

SUPREME COURT OF QUEENSLAND CITATION: Beardsley v Loogatha [2001] QCA 438 PARTIES: SERRENA FAYE BEARDSLEY (plaintiff/appellant) v ANNETTE TRACEY LOOGATHA (defendant/respondent) FILE NO/S: Appeal No 5823 of 2001 DC No 2230 of 2001 DIVISION: Court of Appeal PROCEEDING: General Civil Appeal ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 26 October 2001 DELIVERED AT: Brisbane HEARING DATE: 20 August 2001 JUDGES: McMurdo P, Williams JA and Holmes J Separate reasons for judgment of each member of the Court, each concurring as to the orders made. ORDER: 1. Appeal allowed. 2. Set aside the order made 21 June 2001 and substitute an order that the respondent pay the applicant the sum of $67,500 as compensation for the injuries suffered by the applicant because of the offence of grievous bodily harm committed upon her by the respondent. 3. The respondent to pay the appellant’s costs of the appeal to be assessed. 4. Grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). CATCHWORDS: CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – COMPENSATION – QUEENSLAND –whether necessary that nervous shock suffered by “over and above” the ordinary reaction to the injury –whether injury to the eye and mental and nervous shock were sufficient distinct injuries to warrant -- 1 of 5 -- 2 assessment under separate relevant items under the compensation table PROCEDURE – INFERIOR COURTS – QUEENSLAND – DISTRICT COURT – APPEAL AND NEW TRIAL – APPEAL TO SUPREME COURT – PRACTICE – LEAVE TO APPEAL – whether leave to appeal required under s 118(2) District Court Act 1967 where the amount claimed is equal to or more than the Magistrates Court jurisdictional limit of $50,000 APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – APPEAL COSTS FUND – POWER TO GRANT INDEMNITY CERTIFICATE – WHEN GRANTED – whether s 31 Criminal Offence Victims Act 1973 (Qld) precludes the court from granting the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld) Appeal Costs Fund Act 1973 (Qld), s 15 Court Reform Amendment Act 1997 (Qld) Criminal Offence Victims’ Act 1995 (Qld), s 31 District Court Act 1967 (Qld), s 118. HW v LO [2001] 2 Qd R 415; [2000] QCA 377, cited R v Kazakoff ex parte Ferguson [2001] 2 Qd R 320, followed MR v Webb [2001] QCA 113; Apeal No 4166 of 2000, 6 March 2001, cited R v Tamcelik, ex parte Ozcan [1998] 1 Qd R 330, considered COUNSEL: A J Kimmins for the appellant M D Hinson SC as amicus curiae for the Attorney-General No appearance for the respondent SOLICITORS: Price & Roobottom (Southport) for the appellant No appearance for the respondent [1] McMURDO P: I agree with the reasons for judgment of Holmes J and with the additional comments of Williams JA. [2] The appellant succeeded on a question of law. The issue arises as to whether costs of the appeal can and should be awarded against the respondent and if so, whether this Court should grant an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). That was the course taken in HW v LO1. That case concerned criminal compensation under the earlier scheme covered by Ch 65A, Criminal Code. [3] The earlier scheme did not include a provision comparable to s 31 Criminal Offence Victims’ Act 1995 (Qld) which provides: “A court is unable to make an order for the payment of costs of an application for a compensation or repayment order”. An order for the costs of an appeal is not “an order for the payment of costs of an application for a compensation or repayment order”. There is nothing in the 1 [2001] 2 Qd R 415. -- 2 of 5 -- 3 Criminal Offence Victims’ Act 1995 (Qld) to preclude this court from ordering the respondent pay the costs of the appellant’s successful appeal and, as in HW v LO, granting the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). In the circumstances that seems the appropriate course. [4] WILLIAMS JA: I have had the advantage of reading the reasons for judgment prepared by Holmes J and I agree with her substantive reasons for allowing the appeal. [5] The notice of appeal queried whether leave to appeal was necessary, and sought leave if required. Presumably that course was taken in view of the observations of Pincus JA in R v Tamcelik, ex parte Ozcan2. As was noted by Pincus JA at 333, the application in that case was to be determined according to the law as it stood on 10 November 1995. Section 118 of the District Court Act 1967 as it then stood referred to a party being dissatisfied with a judgment in an action in which the “sum sued for” exceed a particular amount. A new s 118 was inserted by the Courts Reform Amendment Act 1997. Section 118 in its present form does not now use the expression “sued for”. Subsection 2 now provides that a party who is dissatisfied with a final judgment of a District Court in its original jurisdiction may appeal to the Court of Appeal if the judgment is given for an amount equal to or more than the Magistrates Courts jurisdictional limit, which is the sum of $50,000. Section 68(1)(a)(iv) provides that a District Court has jurisdiction to hear and determine any claim for compensation arising under any Act. That would clearly catch a claim for compensation under the Criminal Offence Victims’ Act 1995. [6] As the amount of compensation awarded in the District Court was more than $50,000, leave to appeal to this Court is not required. [7] The orders of the Court should therefore be: Allow the appeal, set aside the order appealed from and substitute an order that the respondent pay the applicant the sum of $67,500 as compensation for the injuries suffered by the applicant because of the offence of grievous bodily harm committed upon her by the respondent. Order that the respondent pay the appellant’s costs of the appeal to be assessed and grant the respondent an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). [8] HOLMES J: The applicant seeks leave to appeal against the inadequacy of a compensation order made in her favour, for grievous bodily harm committed on her by the respondent. She was struck with a bottle and lost most of the sight in her left eye. In addition to that physical injury, a psychologist’s report concluded, on the basis of an interview with the applicant and a trauma symptom inventory administered to her, that she suffered chronic post traumatic stress disorder with anxiety and depressed mood as a result of the assault. The compensation order [9] The learned judge at first instance assessed the amount of $52,500 as payable in respect of the loss of vision. There is no argument with that component of the order. 2 [1998] Qd R 330 at 336. -- 3 of 5 -- 4 However, his Honour assessed compensation for mental and nervous shock at $2,500. That figure would equate to an assessment at the low end of the range of percentages for item 31 of the compensation table (Schedule 1 of the Criminal Offence Victims’ Act 1995). [10] The applicant contends that the proper assessment was in an amount of $22,500. The argument, in essence, is that his Honour’s reasons reflect error in the following statements: “Naturally, the total functional loss of an eye and the disfigurement and cosmetic disability associated with such an injury will cause diminishment of the victim's ability to enjoy life and consequent mental or nervous shock. Such matters, however, would be taken in account when fixing the amount prescribed for loss of vision in the compensation table. A separate award for mental or nervous shock should only be made when the mental or nervous shock would exceed what would normally be expected to be suffered by a person who has lost the sight of one eye. “ [11] It seems likely that his Honour had in mind the decision of Thomas JA in R v Kazakoff ex parte Ferguson3 when he made those observations. In that case, Thomas JA provided some criteria for the assessment of whether mental or nervous shock had been suffered: “The ordinary usage of the term [nervous shock] has been to describe situations of injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event … It would in my view unduly limit the term if it were confined to conditions that are recognised as psychiatric disorders. Conversely it over stretches the term to use it as a source of additional compensation for natural human emotions felt by people who cope adequately with the aftermath of an offence and are able to get on with their lives … If nothing more is shown than fear, fright, unpleasant memories or anger towards an offender or a combination of such reactions, the claimant has not shown that he or she has suffered nervous shock unless the court is affirmatively satisfied that mental or nervous shock has been suffered, compensation should not be awarded for such reactions … I am equally of the view that the decision in R v Horne, ex parte Hill, is not appropriate to apply to the definition of ‘injury’ in s 20 of the present Act. To limit compensation to cases where a disagnosable mental disorder or psychiatric illness results would give the term ‘mental or nervous shock’ to limited a meaning.”4 [12] The learned judge at first instance in the present case seems erroneously, to have equated a normal reaction to loss of an eye with “mental or nervous shock” for the purposes of the Act, rather than distinguishing the two as Thomas JA did in 3 [2001] 2 Qd R 320. 4 (supra) at page 324-325. -- 4 of 5 -- 5 R v Kazakoff ex parte Ferguson. Once the conclusion is reached that the complainant has suffered nervous shock, it is axiomatic that his or her response is “over and above that of normal human reaction or emotion”. “Mental or nervous shock” is the condition for which the Act provides compensation. Having concluded that the complainant has suffered from it, it is not to the point to consider what level of mental or nervous shock might have been suffered by another person in a similar position. [13] The learned judge having (incorrectly, in my view) approached the matter on the basis that it was not a question of whether mental or nervous shock had occurred at all, but rather whether it was of sufficient severity, went on to say: “There is nothing in the report of Mr Tim Ryan, the psychologist, to suggest that any mental or nervous shock suffered by the applicant is significantly greater than what would be experienced by anybody who has lost the vision in one eye.” [14] It is true that Mr Ryan attempted no comparisons, but his opinion was that “the assault was a severe nervous shock and that Ms Beardsley developed chronic post traumatic stress disorder with anxiety and depressed mood as a consequence.” Clearly it was a conclusion that more than “fear, fright, unpleasant memories or anger towards an offender or a combination of such reactions” existed. Unless that opinion were to be rejected (and it was not) the applicant was entitled to be treated and compensated as an individual who had suffered mental or nervous shock for the purposes of the Act. [15] Nor do I consider that his Honour was correct in the view that this was a case in which nervous shock would appropriately be compensated by adjusting the amount awarded for loss of vision under the compensation table. The injury to the eye and the nervous shock suffered were sufficiently distinct injuries to warrant assessment under the separate relevant items under the compensation table in respect of loss of vision and mental or nervous shock. It is not a matter of double compensation for the same component.5 [16] For the reasons I have given, I would allow the appeal. It is the case that his Honour, despite his comments, made an award in respect of nervous shock, in the amount of $2,500 already mentioned. Given, however, what I consider to be his error in approach to the matter, it seems to me that this court should set aside his finding in that regard and substitute its own. I would place the applicant’s mental or nervous shock at the lower end of the severe range, allowing 20 percent, or an amount of $15,000. [17] I would set aside his Honour’s order and substitute instead an order that the respondent pay the applicant the sum of $67,500 as compensation for the injuries suffered by her because of the offence of grievous bodily harm committed upon her by the respondent. [18] I agree with the proposal of the President in relation to costs of the appeal. I further order that the respondent pay the costs of the appellant’s appeal and be granted an indemnity certificate under s 15 Appeal Costs Fund Act 1973 (Qld). 5 MR v Webb [2001] QCA 114; Appeal No 4166 of 2000, 6 March 2001. -- 5 of 5 --