Elliott v Pickard [2000] QSC 298

- / - , ~ li\~5, c;,c co /R 1B State Reporting Queensland Government Bureau DepartmentofJusticeandAttorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION WILSON J Toowoomba Registry No S51 of 2000 JEAN ELLIOT and GLENDA RAE PICK~RD BRI SBAL'\JE .. DATE 04/09/2000 JUDGMENT /, - I r. ~ l c<.- f Ji------::-.J / ------ 1 Ith Floor, The Law Courts, George Street, Brisbane, a. 4000 1 REVISED COPIES ISSUED State Reporting Bureau Date / /.s;>O Applicant Respondent Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 6 -- 04092000 Tl/TM26 M/T 7990/2000 (Wilson J) HER HONOUR: In this matter of Elliott and Pickard, I order that $22,500 be paid by Glenda Rae Pickard to the applicant, Jean Elliot, pecause of injuries sustained on 27 May 1998. I publish my reasons. My associate will arrange for a copy to be faxed to the Deputy Registrar there in Toowoomba, immediately. 2 JUDGMENT 1 10 30 50 60 -- 2 of 6 -- SUPREME COURT OF QUEENSLAND CITATION: PARTIES: Jean Elliott v Glenda Rae Pickard JEAN ELLIOTT (applicant) V GLENDA RAE PICKARD (respondent) FILE NO: Toowoomba S 51 of2000 DIVISION: Trial PROCEEDING: Application for criminal compensation DELIVERED ON: 4 September 2000 DELIVERED AT: Brisbane and Toowoomba (by teleconference) HEARING DATE: 24 August 2000 JUDGE: Wilson J ORDER: That the respondent pay the applicant $22,500 CATCHWORDS: CRIMINAL LAW - COMPENSATION - Respondent convicted of the attempted murder of the applicant - determination of entitlement to compensation under Criminal Offence Victims Act 1995 - assessment of compensation according to statutory compensation scheme COUNSEL: SOLICITORS: Criminal Offence Victims Act 1995 s 19, s 20, s 22, s 24, s 25, Schedule 1 SA Lynch for the applicant No appearance by or on behalf of the respondent Bernays & Bernays for the applicant No appearance by or on behalf of the respondent [IJ This is an application by Jean Elliott for criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995. [2] On 2 July 1999 Glenda Rae Pickard was convicted of the attempted murder of the applicant, unlawful use of a motor vehicle and arson of a motor vehicle. She was sentenced to 8 years imprisonment with a recommendation for eligibility for parole after 3 years for the attempted murder and concurrent terms of 2 years imprisonment for each of the other offences. [3] The applicant and her husband lived on a grazing property. The respondent and her partner lived in a house on the property. The respondent was attracted to the -- 3 of 6 -- 2 applicant's husband. On the night of 27 May 1998, as the applicant was driving home on a lonely road, she came upon the respondent who claimed that her car had broken down. She picked her up. The vehicle had to be stopped to open a rabbit gate. The respondent got out apparently to open the gate. She returned with a weapon, in the form of a tyre lever, with which she attacked the applicant. A number of head wounds were inflicted before the applicant was able to get out of the car. The respondent chased after her and inflicted more head wounds. The applicant managed to disarm the respondent of the tyre lever, but the struggle continued. Eventually the applicant escaped and fled through the bush. She walked 15 - 18 kilometres until she came to a homestead where she got help. [4] The Criminal Offence Victims Act. provides a scheme for the payment of compensation for injury caused by an indictable offence committed against the person of the applicant: s 19. "Injury" is defined ins 20 as bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table which is a schedule to the Act or prescribed under a regulation. Compensation under the Act is intended to assist the applicant, but not to reflect the compensation to which he or she may be entitled under common law or otherwise: s 22. The Court may not award a total of more than the "scheme maximum", which is $75,000. Various categories of injuries are set out in the compensation table together with the percentage of the scheme maximum which may be awarded for each: s 25, Schedule 1. [5] The applicant, through her counsel, sought the following compensation: Item Particulars Prescribed range Suggested range Amount 1,2 Bruising/laceration 1-5% 5% $3,750 etc 9 Fractured skull/head 5 15% 10% $7,500 injury (no brain damage) 27,28 Facial disfigurement, 2-30% 20% $15,000 bodily scarring 31,32 Mental or nervous 2-34% 34% $25,500 shock 69% $51,750 [6] Two victim impact statements and the following reports were put before me: 1. Dr Karen Wright, medical officer at Dalby Hospital; 2. Toowoomba Base Hospital Medical Imaging Department; 3. Dr Robyn Keighran, general practitioner; 4. Queensland Ambulance Service; 5. Rob Babrook, Lifeline counsellor; 6. Dr QN Mungomery, psychiatrist. [7] The applicant was born on 19 July 1951. [8] After the attack the applicant was taken by ambulance to the Emergency Department of the Dalby Hospital, then to the Toowoomba Hospital for CT scans, and then back to the Dalby Hospital where she remained for three days. Dr Wright -- 4 of 6 -- 3 who attended her at the Dalby Hospital made her statement five days after the attack. She said - "The following injuries were documented: 1. Eight scalp lacerations, varying from 1 cm to 7 cm in length, three of which were down the periosteum in depth. 2. Haematoma over the left mandible and left infra-orbital margm. 3. Two small 1 cm x 1 cm superficial abrasions on the left infra-orbital margin and in the left naso-labial area. 4. Large haematoma, measuring 10 cm x 10 cm in the left upper arm, approximately mid-humeral level. 5. Swelling and bruising. of the ring finger on the right hand and middle, ring and little fingers on the left hand at the metacarpo-phalangeal joints. 6. There were multiple superficial abrasions and bruisings to the lower limbs, feet and hands bilaterally. 7. Tenderness in the paravertebral region on the left side between C7-T3/4. 8. Small haematoma measuring 2 cm x 2 cm in the right upper arm. 9. Left wrist was tender and bruised laterally. All of the scalp lacerations required suturing. Xray examination of her left arm and left mandible were performed however no fractures were seen. A CT scan of her head was performed and was reported as normal. All of the injuries would have caused moderate pain and discomfort at the site, however there shouldn't be any long term effect. The injuries were consistent with several blows from a blunt object." [9] Ten days later the applicant returned to the Dalby Hospital to have her sutures removed. She consulted a locum of her general practitioner on 13 July 1998. According to Dr Keighran (the regular general practitioner) the locum commented: "Post trauma fibroid left cheek, from 28.05.98 when assaulted with crowbar. Ongoing headaches. Plan - ? Plastic surgery for excision. Treatment-Brufen 400mgs tds." Dr Keighran said she could not comment on the long term effects on the applicant. [JO] Apart from the psychiatric evidence, there is no more recent medical evidence. The plaintiff has not undergone plastic surgery. She is employed at the Dalby TAFE where she teaches office and business studies. After the incident she separated from her husband, and she now resides in rented accommodation. [11] The applicant underwent counselling at Lifeline on 20 occasions commencing 30 July 1998. She was examined by Dr Mungomery on 2 June 2000. He considered that as a direct consequence of the attempted murder she was suffering from post traumatic stress disorder and a major depressive illness (which was in partial remission). She was moderately impaired, ie in the range of 15-20%. He went on- "The likelihood of this level of disability being permanent is in the moderate to high range, due to the time since the illness - although there may be some shift in this if specialist psychiatric treatment was -- 5 of 6 -- 4 initiated. However, this would be better delineated in three to six months of active treatment. 16. MANAGEMENT AND TREATMENT It is suggested that even though the likelihood of this condition remaining chronic and being in the moderate to high range - Mrs Elliot may benefit from specialist psychiatric input with the use of a combination of psychotherapy and medication (to help with her current psychological symptoms). The approximate cost of this treatment, including medication would be $1000-$2000. 17. PROGNOSIS Mrs Elliot's prognosis at the time remains fair, with regards to her capacity to continue to work ~ but her likelihood of continuing to experience her PTSD symptoms remains in the moderate to high range." [12] I have assessed compensation as follows:- Item Particulars Percentage Amount 1,2 Bruising lacerations (moderate/severe) 3% $ 2,250 27 Scarring (minor/moderate) 7% $ 5,250 32 Mental/nervous shock 20% $15.000 30% $22.500 I do not consider that there should be any compensation for head injury apart from that for the lacerations and scarring. [13] I order that $22,500 be paid by Glenda Rae Pickard to the applicant Jean Elliott because of injury sustained on 27 May 1998. -- 6 of 6 --