Creed v Creevy [2001] QSC 267

SUPREME COURT OF QUEENSLAND CITATION: Creed v Creevy [2001] QSC 267 PARTIES: JOAN KATHLEEN CREED (applicant) v JOSEPH CREEVY (respondent) FILE NO: 5451 of 2001 DIVISION: Trial Division DELIVERED ON: 27 July 2001 DELIVERED AT: Brisbane HEARING DATE: 19 July 2001 JUDGE: Mullins J ORDER: 1. The respondent pay to the applicant the sum of $55,390 by way of compensation for the injury suffered by the applicant by reason of the offence of which the respondent was convicted on 29 January 1996. 2. The respondent pay the applicant's costs of the application to be assessed. CATCHWORDS: CRIMINAL LAW – COMPENSATION – compensation for nervous shock and physical injuries – respondent convicted of grievous bodily harm – claim under s 663B Criminal Code (Qld) Criminal Code Criminal Offence Victims Act 1995 COUNSEL: EJ Howard for the applicant No appearance for the respondent SOLICITORS: Adamson Bernays Kyle & Jones for the applicant [1] MULLINS J: Joan Kathleen Creed ("the applicant") applies pursuant to s 663B of the Criminal Code for an order that Joseph Creevy ("the respondent") pay to her such sum by way of compensation as is determined by the court for injuries sustained by her and caused by the respondent, as a result of a course of conduct which led to the conviction of the respondent on 29 January 1996 upon indictment on one count of doing grievous bodily harm to the applicant on 4 January 1995. -- 1 of 4 -- 2 [2] Although s 663B of the Code and the related provisions in chapter 65A of the Code were repealed, s 46(2) of the Criminal Offence Victims Act 1995 expressly keeps chapter 65A of the Code in operation in respect of an injury suffered before 18 December 1995 to which chapter 65A of the Code would have applied. [3] The respondent was served with the application, but did not appear on the hearing of the application, when called. [4] The applicant was born on 1 February 1949 and is therefore 52 years old. In about December 1987 she commenced living in a de facto relationship with the respondent and lived on and off in that relationship until July 1994. The relevant incident occurred on 4 January 1995 when the applicant was walking into Southport from her place of employment to have lunch. The applicant had previously taken out a restraining order against the respondent. The respondent came up behind her. She ran into the middle of Gardiner Street. An argument ensued. The applicant ran off, but was chased by the respondent. The applicant felt as if she had been hit with a clenched fist in the back. She went down on the ground and the respondent started kicking her in the head. He then took off and people came to the applicant's aid. She had been stabbed in the back and was taken by ambulance to hospital. [5] The stab wound was to the left posterior lower chest. The applicant was initially treated with a left thoracostomy tube, but she was subsequently transferred to theatre for an urgent left thoracotomy. Following that operation the applicant made an otherwise uncomplicated recovery, other than the usual wound pain. She was discharged on the seventh day after the operation. [6] The applicant suffered continuing physical pain as a result of the wound. Dr Roderick Worfold in September and October 1995 diagnosed that the applicant had a post-thorocotomy fibrosis of the intercostal nerve beneath the left rib along the wound which led to chronic fibrotic pain. [7] The applicant was been left with a curved surgical scar beneath her left arm and has an altered sensation over the scar area. She feels tenderness at the bottom of her rib cage. She has difficulty in everyday activities such as picking up and carrying things with her left arm. Prior to the incident she used to play golf once every three weeks and tennis on a social basis weekly. She has attempted to play golf since the incident, but found that it hurts to do so. She has not returned to playing tennis because that involved a lot of running and when she runs she has the sensation of her injury hurting. She sometimes suffers pain in her rib cage, when she sneezes or coughs. The applicant still relies on anti-inflammatory tablets to manage the pain caused by the incident. [8] Initially after the incident, the applicant suffered from nightmares. She consulted psychiatrist Dr David Straton. In September 1995 she started taking the antidepressant Aropax. The applicant deliberately moved away from the Gold Coast to Gladstone in an endeavour to reduce the symptoms from which she was suffering, as a result of the incident. [9] In his report dated 11 March 1999 Dr Straton diagnosed the applicant as suffering from a post-traumatic stress disorder. By then the applicant had been taking medication for 4 years and was on the antidepressant Aurorix. Because of the -- 2 of 4 -- 3 length of the period for which the symptoms had persisted at that stage, Dr Straton expressed the opinion that it would be reasonable to predict that the applicant would have some post-traumatic symptoms on a permanent basis, but with some luck they would slowly improve, but were unlikely to completely disappear. Dr Straton recommended that it was likely that the applicant would need to see a psychiatrist once a month for 30 minutes to have counselling and adjustment to medication for an indefinite period. Dr Straton stated that this would cost $120 per month. [10] The applicant's affidavit sworn on 4 June 2001 in support of the application confirms that the applicant still suffers from post-traumatic symptoms. She does not live on her own. She will not go to shopping centres on her own, except when she forces herself to do so. She lives in constant fear of being attacked from the back. She continues to take Aurorix. [11] The applicant does not explain the delay in her making this application, but I infer that some explanation is found in her move away from the Gold Coast to which she has subsequently returned and the post-traumatic stress disorder from which she has suffered. I am satisfied on the material that the applicant did not directly or indirectly contribute to her being stabbed by the respondent. [12] Subject to the prescribed amounts which cap the amount of the compensation and which are set out in s 663AA of the Code, the compensation has to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil actions. [13] In the case of mental shock or nervous shock, the prescribed maximum is $20,000. This covers the post-traumatic stress disorder from which the applicant continues to suffer. I will therefore assess the damages for nervous shock, separately from the damages for other pain, suffering and loss of amenities as a result of the stabbing. The latter will include the hospitalization and treatment for the injury, the residual nerve damage and scarring and occasional pain. [14] At the time of the incident the applicant was employed as a computer technician at an eye specialist. She resigned that position, as it was felt that the possibility of future attacks by the respondent made the applicant's presence at the surgery a risk to the safety of the practice. After 6 weeks of being unemployed, the applicant found another job and has not had any other period of unemployment. The applicant therefore seeks the sum of $2,363.36 for her lost wages in that period of 6 weeks. Although the applicant also seeks damages for loss of future earning capacity, her work history does not support such a claim. [15] In assessing damages I have considered other decisions on claims for criminal injuries compensation. I have also considered the comparable quantum decisions in personal injuries matters to which Mr Howard of Counsel referred. He conceded that the total amount of damages for pain, suffering and loss of amenities should fall in the range between $30,000 and $45,000. [16] Having regard to the length of time for which the applicant has already suffered the post-traumatic stress disorder and the prognosis of Dr Straton, I consider that the nervous shock component should be $20,000. I assess the damages for the balance of the pain and suffering and loss of the amenities of life for the physical injuries at -- 3 of 4 -- 4 $15,000. Taking into account the schedule of damages prepared by Mr Howard, I assess the damages as follows: Nervous shock $20,000.00 Pain, suffering and loss of amenities of life for the physical injuries 15,000.00 Interest of 1/3 general damages by 2% pa x 6.5 years 1,517.00 Past economic loss (6 weeks x $393.89 net/wk) 2,364.00 Interest @ 6% pa x 6.5 years 920.00 Past out of pocket expenses ($35/month from July 1995-July 2001) 2,520.00 Interest @ 6% pa x 3 years 450.00 Future out of pocket expenses ($8 per wk x 20 years less 25%) 3,996.00 Future medical treatment ($27/wk x 10 years less 25%) 8,363.00 Cost of ambulance 260.00 Total $55,390.00 [17] As this amount of $55,390 is less than the maximum compensation that was prescribed as at 4 January 1995, the amount of the award will be $55,390. The orders I make are: 1. The respondent pay to the applicant the sum of $55,390 by way of compensation for the injury suffered by the applicant by reason of the offence of which the respondent was convicted on 29 January 1996. 2. The respondent pay the applicant's costs of the application to be assessed. -- 4 of 4 --