Buckland v Kennedy (dec'd), Estate of [2000] QSC 337

THE SUPREME COURT [2000] QSC 337 OF QUEENSLAND BRISBANE No. S2488 of 2000 BETWEEN: GRANT ANTHONY BUCKLAND Plaintiff AND: ESTATE OF LEANNE JUDITH KENNEDY (DECEASED) Defendant REASONS FOR JUDGMENT B.W. Ambrose J. Delivered the second day of October 2000 CATCHWORDS: CRIMINAL - APPLICATION FOR CRIMINAL COMPENSATION – Extent to which applicant’s behaviour contributed to his injuries Criminal Offence Victims’ Act (Qld) 1995 Counsel: Mr M J Burns for the applicant No appearance for or on behalf of the respondent Solicitors; Greenhow & Yeates for the applicant No appearance for or on behalf of the respondent Hearing Dates: 30 March 2000 & 14 September 2000 [1] This is an application pursuant to s 24 of the Criminal Offence Victims Act (Qld) 1995 by Grant Anthony Buckland for injuries he suffered when stabbed in the abdomen by Leanne Judith Kennedy on 27 September 1996. [2] The application was made on 20 March 2000. [3] On 14 April 1997 an indictment was presented against the deceased in Toowoomba on a charge that on 27 September 1996 she attempted unlawfully to kill the applicant. Alternatively she was charged with unlawfully doing grievous bodily harm to him with intent to do so. -- 1 of 10 -- 2 [4] She pleaded not guilty to both charges and on 16 April 1997 a jury acquitted her of the two charges but convicted her of doing him grievous bodily harm simpliciter. [5] On 24 April 1997 she was released on probation for a period of 3 years upon various conditions including one that during that period she have no voluntary contact of any kind with the applicant. [6] The deceased died in Toowoomba in September 1997 leaving no estate. [7] The applicant claims compensation for a post-traumatic stress disorder as well as physical injury from the stab wound. [8] A significant issue in this matter is the extent to which the behaviour of the applicant directly or indirectly contributed to his injury at the hands of the deceased. [9] The matter is complicated by the fact that the person who inflicted injury on the applicant is unable to give her version of the events relevant to this issue of contribution which is highlighted by an observation in the report of a consultant psychiatrist, Dr Walton, who has examined the applicant for the purpose of his application in the following terms – “I note that there are discrepancies in the history provided to me by your client as opposed to the formal findings by the sentencing judge in relation to the trial of the perpetrator extending to Mr Buckland providing apparently incorrect information as to the disposition. Furthermore the situation has been additionally complicated by the subsequent death of the alleged perpetrator which apparently removes an avenue for correction of information. - - As a psychiatric expert essentially I cannot assist in the resolution of the apparently contradictory information.” [10] The application is made under s 24(2) of the Criminal Offence Victims Act (Qld) 1995 (the “Act”). Section 25(7) of the Act provides – “In deciding whether an amount or what amount should be ordered to be paid for an injury the court must have regard to everything relevant including for example any behaviour of the applicant that directly or indirectly contributed to the injury.” Section 30 of the Act provides – “30. (1) A proceeding on an application to a court for compensation - - is a civil proceeding. (2) Without limiting sub-section (1) issues of fact on the application must be decided on the balance of probabilities. (3) On an application the court may receive information in any form the court considers appropriate.” -- 2 of 10 -- 3 [11] I have had placed before me the transcript of evidence and exhibits upon the trial of the deceased and also the material available at date of sentence when a probation order was made. [12] On 22 August 2000 an affidavit of the applicant was filed to which he exhibited a medical report from Dr Brumer dated 18 March 1997 which recorded 7 notations of treatment of the deceased for results of physical violence by the applicant in which reference is made to the deceased and the applicant together attending a male violence group to help him “deal with his aggression and domestic violence”. Also exhibited to that affidavit is a report from Dr Curtis dated 24 April 1997 to which reference is made to a violence protection order made against the applicant in Southport Magistrates Court on 26 April 1995 which was still in force at the time he was stabbed while residing with the deceased. [13] It is interesting to note a psychiatric assessment of the deceased – “Ms Kennedy presented as an asthenic frail built person with careworn facial lines and downcast facial expression. Her eyes filled with tears and she commenced tearful sobbing when asked whether she felt depressed. She freely admitted the crimes. She saw the crimes as something out of pattern in terms of her own life and her own inclinations. ‘I am not a violent person - - it’s usually me who’s getting it.’ She freely discussed all the details of the crime with me. She was unequivocal in her regret and her remorse about what had happened.” In the course of recounting her past history he observed – “She had been subjected to various injuries consequent upon domestic violence including alleged domestic violence by the victim of the current crime. Ms Kennedy said that these had been documented by doctors in Melbourne but not in Queensland.” In the course of his examination he recorded and observed – “She said of the assault incident ‘I couldn’t take anymore - - I panicked and ran - - His voice got to me. He slapped me in the face at the pub. I would say to him ‘why are you talking to me this way if you say you care for me’. She said she was bewildered about what she had done because she had always been too scared ‘to fight back’. ‘It’s always been the other way around - - I think I just couldn’t take it anymore.’” [14] In the course of stating his conclusions on his examination of the deceased he observed – “Your client’s clinical presentation is consistent with that of a cowed and battered woman of a drug dependant and downtrodden type enmeshed in a co-dependant relationship and in an allied domestic violent situation. - - I think that my medical examination points out that this woman is one of a disaffiliated and marginalised group of -- 3 of 10 -- 4 people who lack the mental toughness and the personal resources to cope with the traumata inherent in the environment in which they find themselves. These people continue on in circumstances and ways that are inexplicable to a certain extent to people who have never experienced the dilapidation and the dependence of the psychologically denying and blind survival mode operating in this type of person.” Towards the end of his report Dr. Curtis observed – “The above comments assume that an apprehended violence order of some sort or some sort of restraining order will continue to be in place prohibiting the interpersonal contact by Kennedy and Buckland. It would appear that any recommendations will be rendered useless if these people continue to see one another. Dr Bryant did note that Buckland’s contact with Leanne Kennedy had in his observations a very disturbing influence on her.” [15] On the question of contribution essentially the applicant’s version of events upon this application mirrors the version given upon trial which was that he and the deceased returned from a hotel to their residence. The deceased took her dog outside. He sat on a couch with a stubby of beer and fell asleep. When he woke up he found the deceased standing in front of him and a knife embedded in his chest. He said he asked her why she had done that and she fled. He tried to chase her to find out why she had stabbed him but then collapsed. [16] He denied any recollection of having slapped the deceased across the face at the hotel but said that it was “possible”. He said he had no recollection of intervention by another person at the hotel although it also was “possible”. He agreed that at the time of the stabbing he was the subject of a domestic violence order with respect to the deceased and agreed that on a couple of occasions prior to moving to Queensland he had been violent towards her. He said however that a broken nose which she asserted was caused by his violence was an accident. He said he may possibly have caused her to have black eyes but that he was not aware that he had caused her to have chipped teeth. He said that as far as he knew he had never poured boiling water on her. He said he did not remember calling her a “useless slut” when he arrived home with her on the night of his injury although it was possible he did. [17] He said he could not remember demanding that the deceased prepare dinner for him as he lay on a couch. He said he did not recall having the deceased’s dog with him on the couch and that to his knowledge he had never handled her dog in such a way as to upset her. He said he did not remember abusing the deceased or any of the conversation that she asserted took place prior to her stabbing him. [18] The applicant contradicts the statement made by the deceased to the police officers shortly after the stabbing giving her version of the events preceding it. Undoubtedly if the circumstances are accurately outlined in that recorded interview there must be a significant reduction in any compensation ordered by reason of the applicant’s contribution to his own injury. -- 4 of 10 -- 5 [19] One of the matters that led to the stabbing according to the deceased’s version of events shortly afterwards was that he had grabbed her pet dog and she was afraid that he was going to partially strangle it as he had done on a few prior occasions causing the dog to defecate on the floor which required that the deceased clean it up. She said in effect that the applicant was abusing her while lying on the couch holding her dog in his arm when the dog was trying to get away. She said that she remonstrated with him but he merely abused her. [20] She said he demanded that she prepare a meal in the kitchen to his taste and abused her calling her a slut and telling her that she was useless. She said she went into the kitchen and started to prepare a meal but he kept on shouting abuse at her. She said she picked up a knife and walked over to the applicant who was holding her dog under his arm which was very distressed at this time and pushed the dog to one side. She then observed – “I don’t regret it. I really do not regret what I have done. I hate him. I hate him with - - I can’t even say I’m sorry for what I’ve done and that’s going to go really well but I can’t. As long as he does not hurt anybody else. He’s hurt enough people – he can’t even look after the twins he’s got in Melbourne - -“ - - “I don’t know I don’t know what happened then. My mind just went blank, it was the weirdest thing I have ever experienced. The hatred came over me I wouldn’t believe I don’t know what I did – it was just hatred.” [21] The description of the appearance of the deceased by Dr Curtis accords with my own impression of her appearance. [22] I suspect also that while provocation was not a defence that was or could have been raised on the charges brought against the deceased, the jury’s acquittal on the charges of attempted murder and doing grievous bodily harm with intent while explicable I suppose on an absence of either intent because of the consumption of alcohol by the deceased preceding the stabbing would also be explicable on the basis that she was truly a “battered wife” who had finally lost control as a consequence of the abusive behaviour she suffered at the hands of the applicant over a period of years and stabbed him. [23] I am persuaded on the balance of probabilities that it was the abusive behaviour of the applicant to the deceased over a long period of time, which had resulted in the making of a domestic violence order against him 18 months earlier (which was still in force) and the events of that evening at the hotel when he had struck her across the face on two occasions in public view and had then treated her the way she recounted to the police officers shortly after the stabbing which culminated in her losing self-control and stabbing him causing injuries of which he complains. In my judgment therefore the amount of compensation to be ordered should be reduced by at least 50% of the sum which would otherwise have been ordered. -- 5 of 10 -- 6 [24] Section 20 of the Act defines “injury” as “bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table or prescribed under a regulation”. Under Schedule 3 to the Act “injury specified in the compensation table” is defined to include “any injury substantially similar to an injury specified in the compensation table”. Under Regulation 2 of the Regulations made under the Act the scheme maximum is fixed at $75,000.00. [25] The compensation table contained in Schedule 1 to the Act (made pursuant to ss 20 and 25(4) of the Act insofar as relevant to this application) provides that in assessing compensation for stab wounds (minor) the percentage of scheme maximum is 6%-10%, for stab wounds (moderate) 8%-16% and for stab wound (severe) 15%-40%. [26] With respect to mental or nervous shock it is specified that for minor mental or nervous shock the percentage is 2%-10%, for moderate mental or nervous shock 10%-20% and for severe mental or nervous shock 20%-34%. [27] The legislation gives no indication of matters relevant to the determination of whether these injuries fall within a minor, moderate or severe category. [28] The evidence in this case indicates that the stab wound inflicted upon the applicant could easily have caused his death had he not been given urgent and extensive hospital treatment. On the other hand, fortunately for him, he seems to have recovered as far as the material goes with no significant physical disability resulting from that stab wound. [29] Section 22(4) of the Act provides – “(4) The maximum amount of compensation provided under this part is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.” [30] For the applicant it is contended that the stab wound inflicted upon him by the deceased should be categorised as a “severe” wound. It is said that the wound was serious because without prompt and effective medical treatment he would have died. Moreover as a consequence of the wound he was on the evidence in hospital for 8 days and suffered from some although not serious disability for a couple of months. [31] According to a hospital report from Toowoomba Base Hospital the applicant was brought to that hospital by ambulance on the evening of 27 September 1996 after the stabbing. He had a stab wound in the fifth to sixth intercostal interspace. A catheter was inserted which drained over two litres of blood. He was then taken to operating theatre and a right thoractomy was performed. It was discovered that he had a laceration to the right internal mammary artery which was oversewn. He was then transferred for post-operative treatment where he made steady recovery. He was transferred to a surgical ward on 30 September 1996 and received chest physiotherapy and analgesia. He was discharged home on 5 October 1996. He was to be reviewed in specialist surgical outpatients clinic at a time two weeks -- 6 of 10 -- 7 following discharge but he did not attend for review. He sought no further medical assessment at the hospital for any persisting disability. [32] On 10 October 1996 the applicant attended Dr Macdermott and had staples removed from his surgical wound. On 29 October 1996 he complained of some chest discomfort and it was found that he had a limitation of abduction of his right arm but there were no other abnormalities discovered. He was advised to exercise his upper limbs and was given a certificate for DSS for one month – i.e. for the month preceding 29 November. He again consulted Dr Macdermott for an unrelated topic. According to a report from Dr Fogarty the applicant was fit for work from 1 March 1997. Although that doctor observed that the applicant had some intercostal neuralgia following the operation which “might persist and become chronic”. [33] Dr Day, a consultant neurologist at Monash Medical Centre assessed the applicant for neurology on 22 June 1997. Subsequently he was investigated with EEG and CT scans. He was complaining of some blackouts. Dr Day concluded that the applicant had suffered partial seizures and should be treated with anticonvulsive medication. That report was obviously obtained with a view to supporting his claim for compensation. The furthest Dr Day would go with respect to connecting the applicant’s “recurrent complex partial seizures” with the stabbing he sustained in September 1996 was to observe – “It would be interesting to speculate whether injuries sustained at the time of the stabbing could have contributed but this would require demonstration of either air embolism or severe hypotension causing areas of cerebral ischaemia which could conceivably and at a later time give rise to focal seizures.” [34] I am unpersuaded on the balance of probabilities that the “complex partial seizures” to which Dr Day referred resulted from the stab wound the applicant sustained. [35] The problem I have with categorising the stab wound as a severe one is that there is no persuasive evidence that it has left the applicant with any residual disability or incapacity. From the evidence placed before me I infer that indeed he was lucky to make a remarkable recovery from this wound. While in one sense perhaps it might be described as a “severe” wound because of the potential it had to cause a lasting serious injury, it is the object of the legislation in my view to have the court assess the severity of a stab wound at the time the order is made and not at the time the wound was inflicted. While undoubtedly it would be correct to describe the wound as a serious one at the time it was inflicted because of its potential to cause death or perhaps serious permanent disability, in my view it would not be correct to categorise it as a severe stab wound at the present time if the evidence does not disclose that it has caused a significant permanent disability. [36] There is no evidence led in this case to suggest that that has been a consequence of the stab wound. As far as the evidence stands the appellant was disabled for about 4 months. He suffered the experience of having complicated surgery and was kept in hospital for 9 days. He did not return for outpatient treatment and indeed seems not to have required any or any significant medical treatment which extended beyond a couple of months after the stabbing. -- 7 of 10 -- 8 [37] I would categorise the stab wound inflicted upon the applicant by the deceased in the circumstances as falling within the “moderate” category which is item 25 of the compensation table in Schedule 1 to the Act requiring an assessment of between 8% and 16% of the scheme maximum. Looking at the whole of the material I would select a percentage of 12%. [38] Medical reports from a consultant psychiatrist, Dr Walton dated 16 September 1997 and 5 October 1998 was relied upon to show the nature and extent of the “mental or nervous shock” which the applicant contends could be categorised as within the “severe” category. In June 1997 the applicant told Dr Walton that he had recovered from the physical injury inflicted upon him except that he had been left with “occasional chest pain and shortness of breath”. He told the doctor that a month after he had been discharged from hospital in Queensland he made his way to Victoria where he stayed with his girlfriend’s father for 2 or 3 weeks before returning to Clifton. In late December 1996 he returned to Melbourne where he had remained thereafter. [39] He stated that his sleep had been disturbed until 2 months prior to his examination – i.e. until about mid-April 1997. [40] I do not propose to analyse in detail the content of the reports. It suffices to say that the applicant had also been sexually abused by an adult male when he was 11 years of age. This also had some long term adverse effect on his psychiatric condition. [41] It is interesting to observe the opinion expressed in Dr Walton’s report given on 16 September 1997 – “I note in your covering letter that you refer to your client as attending me for “treatment” but I have conducted two isolated psychiatric assessments of him only. On the first occasion he was actually referred directly by his solicitor but on the second occasion he had obtained a medical referral although he made it clear that he wished to undergo assessment in relation to his criminal injuries claim only. It was not that Mr Buckland was avoidant of undergoing psychiatric treatment he having availed himself extensively of counselling and he had been prescribed psychotropic medications in the past, however he believed that at the time of my second assessment with the improvement in his social circumstances and with the prospect of employment he was likely to be able to cope without professional assistance. I made it clear that I was willing to see him further if necessary but to date he has not returned for further assistance.” Dr Walton continued – “This man has been the victim of multiple crimes and in relation to the latest incident he is properly described as vulnerable because of the previous history. I doubt that he was actually suffering from any diagnosable mental condition immediately preceding the latest stabbing incident, he reporting substantial resolution of his previous symptoms, however it is clear there has been a deterioration in -- 8 of 10 -- 9 mental state after the incident and the most appropriate diagnosis would be that of a post-traumatic stress disorder, effectively a recurrence rather than an aggravation of a condition which had existed previously. In my opinion the stabbing is the cause of the latest bout of post- traumatic symptoms.” “As has been the pattern in the past this man has enjoyed some improvement in his psychological problems merely with the passage of time and an improvement in his social circumstances. He certainly remained symptomatic at the time of my latest assessment. [i.e. June 1997] Precisely whether or not he will enjoy a complete resolution of symptoms must remain in some doubt specially as this man has now been a victim on multiple occasions however I would anticipate that he would enjoy a substantial recovery certainly to a point where he would be capable of working and pursuing a reasonably normal social life. Perhaps what is of most concern is that Mr Buckland has now been victimised on so many occasions. I now regard him as being quite vulnerable in terms of any further adverse events. I suspect that if he were further victimised or even exposed to non-criminal stress then it is highly likely that he would become severely depressed with attending suicide risks.” [42] In essence, Dr Walton’s view is that as a consequence of the stabbing in September 1996 the applicant suffered a recurrence of a pre-existing post-traumatic stress disorder. He was still suffering from those symptoms on 17 June 1997 – about 9 months after the stabbing. I infer that should the applicant be “further victimised” or subjected to further significant stress then it is probable that severe depression would result with an attendant suicide risk. [43] I would categorise the mental or nervous shock disability which the stabbing caused the applicant as “moderate” – i.e. within the 10% to 20% percentage range of the scheme maximum. [44] In arriving at this conclusion I have regard to the fact that he already suffered from post-traumatic stress disorder which probably caused him to suffer from the stress disorder which he did when he was stabbed. However he seemed to have significantly recovered (although not entirely) from that condition when he was seen by Dr Walton about 9 months after the stabbing. The significant consequence of the stabbing as far as Dr Walton was concerned was that together with all the earlier stressors to which he referred in his report it might make the applicant more vulnerable to yet further stressors should he be subjected to them. Should this occur he may develop depression which would put him at risk. If he was not subjected to further stressors then the recurrence of the pre-existing post-traumatic stress disorder occasioned by the stabbing will not be productive of any significant psychiatric condition. It is unclear on the medical evidence placed before me whether further stressors quite apart from the stabbing he received at the hands of the deceased would not in any event produce depression. -- 9 of 10 -- 10 [45] Looking at the matter broadly I place the mental or nervous shock suffered by the applicant – which seems largely to have settled at the moment as within the “moderate” category and I assess that mental or nervous shock at 15% of the scheme maximum. [46] All told therefore I would assess the applicant’s injuries as entitling him subject to contribution to award of 27% of the scheme maximum of $75,000.00 which is the sum of $20,250.00. [47] I reduce that sum by 50% having regard to the extent to which the applicant’s behaviour was responsible for the injury inflicted upon him. I order that the estate of the deceased pay to the applicant the sum of $10,125.00 compensation pursuant to s 24(3) of the Criminal Offence Victims Act 1995. -- 10 of 10 --