Barry v Waters [1999] QSC 430

) I r oc ,~ J L l -r. r:? ~ State Reporting Bureau\ , 1- REVISED COPIES ISSUED TRANSCRIPT OF PROCEEDING$. StateReportingBureau . 'f :"3te f4 / (,;2.. /~ \ / (CopyTight in this transcript is vested in the C~or.'TI. Copies tne!"eDf mus: not te maG:: or sole ,,,ithout the 'Hitten authority of the Dir~ctor~ Stat:: Reponing Bure:lU.) ) SUPREME COURT OF QUEENSLAND CRIMINAL JURISDICTION WILSON J No OA8 of 1999 IN THE MATTER OF AN APPLICATION FOR CRIMINAL COMPENSATION UNDER SECTION 24 OF THE CRIMINAL OFFENCE VICTIMS' ACT 1995 KARLINE DENISE BARRY (ALSO KNOWN AS DENISE FOY) Applicant and JOANNE WATERS Respondent TOOWOOMBA .. DATE 14/12/99 JUDGMENT 1 4th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 2274360. Facsimile: (07) 2275532 -;"._,' : '~' -- 1 of 6 -- 141299 D.2 T1/JET M/T TWNSC99/49 (Wilson J) HER HONOUR: This is an application by Karline Denise Barry, \ .also known as Denise Foy, for cLiminal compensation pursuant to section 24 of the Criminal Offence Victims Act 1995. On 9 December 1996, Joanne Waters pleaded guilty to the charge that with the intent to do grievous bodily harm, she did 10 grievous bodily harm to the applicant on 17 April 1996. Waters was sentenced to five years' imprisonment with a recommendation that she be eligible for release on parole 20 after 12 months. In the attack, the applicant sustained a stabbing wound to the right side of her chest. She was taken to the Accident and Emergency Department of the Toowoomba Base Hospital where she 30 was found to have a single entry wound in her right anterior chest wall in the seventh intercostal interspace below the right breast nipple and a haemothorax. An intercostal catheter was inserted to drain the blood from 40 her lung and thereafter she was treated with analgesia and chest physiotherapy. She was discharged on 22 April 1996. In consequence of her injuries, the applicant has been left with a) intercostal neuralgia, b) post-traumatic stress 50 disorder and depression, c) exacerbation of pre-existing asthma, d) scarring. The Criminal Offence Victims Act provides a scheme for the payment of compensation for injury caused by an indictable 60 2 JUDGMENT -- 2 of 6 -- 141299 D.2 T1/JET M/T TWNSC99/49 (Wilson J) offence committed against the person of the applicant , \ . (section 19). "Injury" is defined in section 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. 10 Compensation under the Act is intended to assist the appliqant, but not to reflect the compensation to which he or she may be entitled under common law or otherwise (section 22) . 20 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 30 (section 25, schedule 1). The applicant, through her counsel, sought the following compensation: 40 1 . Chest injury severe 30% $22,500.00 2 . Stab wound severe 30% $22,500.00 3. Scarring minor 5% $ 3,750.00 4. Mental/nervous moderate/ 20% $15,000.00 shock severe 50 Totals 85% ~63,750.00 The applicant was born in Victoria on 11 October 1968. In 1972, her family moved to Queensland and she grew up in Toowoomba. In April 1998, she moved back to Victoria as a 60 3 JUDGMENT -- 3 of 6 -- ) 141299 D.2 T1/JET M/T TWNSC99/49 (Wilson J) r~sult of threats by Waters. In fact, since the stabbing, she '. . has moved 10 times. She is a single mother with two children born on 25 November 1986 and 31 March 1995. She was in receipt of the sole parent pension at the time of the stabbing. She had done some modelling, some house cleaning and some work as a kitchen hand. At the time, she was residing in Rockhampton, but travelling to Toowoomba where she was doing work as a nurses aide at a nursing home/respite centre pursuant to a community based Court order. She had a history of alcohol abuse and asthma; the asthma being worsened by heavy smoking. I have had put before me a series of medical reports. 1 . Toowoomba Base Hospital report 2. Dr Robert Weiss, general practitioner Frankston, Victoria 3. Dr John G Baker, neurosurgeon Rockhampton 4. Dr Leonard Rose 5 . Melbourne Pain Management Clinic Mr Murray Stapleton, plastic surgeon Melbourne 6. Mr Gregory W Self, vascular surgeon Melbourne 7. Doug Wright, psychologist The applicant has complained consistently 14/03/97 12/02/90 22/07/97 13/10/97 04/02/99 01/07/99 18/02/99 16/04/99 24/08/99 of chest pain and sensitivity in the area of the scars from the stab wound and the insertion of the catheter. This is the result of damage to the seventh intercostal nerve. 4 JUDGMENT 10 20 30 40 50 -- 4 of 6 -- ) 141299 D.2 T1/JET M/T TWNSC99/49 (Wilson J) She has suffered a loss of function of the right chest wall '\ , 'and a haemothorax of 20-30 per :ent associated with exacerbation of asthma as a direct consequence of the stabbing. She has been dependent on analgesics, including methadone, for pain relief. Dr Rose recommended an 10 intercostal blockade or other form of neurological intervention. There is no indication for vascular surgery. 20 She has two scars. The first is from the entry wound. It is two centimetres in length and when stretched, approximately four millimetres. The other scar from the insertion of the catheter is one centimetre in length and when stretched, approximately two millimetres. She says these are the source 30 of some embarrassment, but in the opinion of the plastic surgeon, they are not significant and would not be improved by scar revision. The applicant says that the chest injury has had an effect on 40 her performance of daily chores, and on her participation in family activities and sport. It has interfered with her enjoyment of physical intimacy with her partner and, indeed, the relationship has broken up. I have before me a report by Mr Doug Wright, a psychologist in which he said this: IIMs Barry has been the victim of an unprovoked assault from which she has suffered physically, psychologically 50 and emotionally. Ms Barry has developed a characteristic 60 set of symptoms following a psychologically distressing 5 JUDGMENT -- 5 of 6 -- j 141299 D.2 Tl/JET M/T TWNSC99/49 (Wilson J) event that is outside the range of usual human experiences. Ms ~a~ry exp=rienced a threat to her physical integrity. The stress in this case produced a sense of fear, terror and helplessness and has involved Ms Barry re-experiencing the traumatic event of having a numbing of general responsiveness and having an increasing arousal." He went on: "For Ms Barry the trauma is re-experienced through recurrent and distressing dreams, through feelings that the event is going to recur and through intense psychological distress at events that symbolise the trauma; i.e. films involving violence and the presence of long knives. Furthermore, Ms Barry experiences a numbing of general responsiveness through efforts to avoid thoughts and feelings associated with the trauma and through a feeling of detachment from others. Symptoms of 10 increased arousal include hypervigilance and difficulty 20 in concentrating. "Ms Barry has experienced characteristic symptoms that have lasted for a period greater than one month after being stabbed. Consequently Ms Barry is diagnosed as having a post-traumatic stress disorder which is mild in nature." On the facts of this case, I consider that to award compens~tion for the chest injury and for the stab wound would amount to duplication. Accordingly, I have assessed compensation as follow: 1 . Chest injury/stab wound 30% $22,500.00 2 . Scarring 2% $ 1,500.00 3. Mental/nervous shock 20% $15,000.00 Totals 52% $39,000.00 I order that $39,000 be paid by Joanne Waters to the applicant, Karline Denise Barry, also known as Denise Foy, because of injury sustained on 17 April 1996. 6 JUDGMENT '.;'-:.: .'.,: 30 40 50 " ~O -- 6 of 6 --