Bignell v Vickery [1997] QSC 213

IN THE SUPREME COURT OF QUEENSLAND No. 3305 of 1997 Brisbane Before Mr Justice Ambrose [ Bignell v Vickery ] IN THE MATTER OF the Criminal Code -and- IN THE MATTER OF BRETT BIGNELL -and- IN THE MATTER OF an application for compensation by ALBERT CHARLES VICKERY REASONS FOR JUDGMENT - B W AMBROSE J Judgment delivered 5 November 1997 CATCHWORDS: CRIMINAL COMPENSATION - s.663B Criminal Code - behaviour of applicant considered under s.663B(2) Counsel: Mrs J. Dick for the applicant Solicitors: Baker & Co for the applicant Hearing date: 6 October 1997 -- 1 of 8 -- -- 2 of 8 -- IN THE SUPREME COURT OF QUEENSLAND No. 3305 of 1997 Brisbane Before Mr Justice Ambrose [Bignell v Vickery] IN THE MATTER OF the Criminal Code -and- IN THE MATTER OF BRETT BIGNELL -and- IN THE MATTER OF an application for compensation by ALBERT CHARLES VICKERY REASONS FOR JUDGMENT - B W AMBROSE J Judgment delivered 5 November 1997 This is an application for compensation pursuant to s.663B of the Criminal Code which had force at the time the respondent unlawfully did grievous bodily harm to the applicant on 23 September 1990. He was convicted and sentenced for that offence on 1 July 1991. Since that time of course s.663B of the Code has been replaced by the Criminal Offence Victims Act 1995. Section 46(1) of that Act provides that it does not apply to injury suffered by somebody prior to its commencement on 22 November 1995. It follows that the rights given to the applicant by the repealed s.663B of the Code may be enforced by him now. Under ss.663B(a) and 663A(ii), the Workers Compensation Act 1990 provides the relevant scale of compensation. Stated shortly the maximum compensation payable under that -- 3 of 8 -- 2 Act at the relevant time was $67,000 in respect of all injuries with the exception of nervous shock. In respect of nervous shock the maximum sum payable was $20,000. The applicant suffered a serious debilitating injury to the left forearm as the result of a gunshot wound inflicted upon him by the respondent. He suffered a compound and comminuted fracture of the shaft of the left ulna with the loss of some bone. There was some damage to the median nerve. He was treated in hospital all told for about a fortnight on two occasions. In the course of treatment which extended over a significant period of time he received bone and skin grafts. He had bone removed from his hip and skin removed from his thigh for those purposes. In the course of that treatment there was a plate inserted in his arm. Subsequently it was removed. Looking at the history of disability emanating from the injured arm - including pain, physical disability, inability to retain employment etc I proceed on the basis that the applicant suffered about a 10% to 20% loss of function of the left arm as the result of the injury he suffered. As well he suffered a loss of income. A good deal of pain, suffering and weakness was experienced over a period of years. Apart from the physical consequences of his injury the applicant has suffered a significant post-traumatic stress disorder involving intrusive thoughts of the shooting, hyper-alertness, and fear of the deliberate infliction of further injury all of which has resulted in a significant change in his personality and attitude towards other people and his ability to fit into a social group. He has had some counselling and therapy for this disorder and this appears to have been of some benefit to him. There has been a considerable improvement in this condition with “minimal symptomatology” remaining. -- 4 of 8 -- 3 His ability to work is no longer affected by his post traumatic stress disorder - although it was for a significant period of time. Under s.663B(2) it is provided inter alia - “(2) In determining whether or not to make an order under subsection 1 of this section and in determining the amount of any order the Court shall have regard to any behaviour of the person aggrieved which directly or indirectly contributed to the injury suffered by him and to such other circumstances as it considers relevant...” On the facts of this case I am satisfied that the behaviour of the applicant did directly or indirectly contribute to the wound inflicted on him by the respondent. On 1 July 1991 the respondent pleaded guilty not merely to the infliction of grievous bodily harm on the applicant but also to wilfully and unlawfully damaging three motor vehicle tyres owned by the applicant. The whole incident appears to have arisen out of an unexplained antipathy which apparently developed between the applicant and his associates and the respondent in the Kingston area in September 1990. Some of the people involved seem to have had convictions for street offences etc. Shortly before the respondent shot the applicant in the arm, the applicant for some unexplained reasons had deliberately slashed one of the tyres on the respondent's car while it was parked on the roadway near a service station which the applicant and some associates had visited in the course of a birthday party being held in a house nearby. Upon sentence of the respondent it emerged that unsurprisingly in the circumstances he learnt of what the applicant had done. It did not emerge of course just how the identity of the person destroying his car tyre came to his attention. Presumably the act done in a public street in the presence of a number of people living in the area nearby was recounted to the respondent. -- 5 of 8 -- 4 Instead of reporting the matter to the police the respondent took into his possession a bag containing clothing and some money owned by the applicant's brother; and as well he retaliated for the damage done to his car tyre by cutting three of the tyres of a motor vehicle owned by the applicant. The respondent then took home the property of the applicant’s brother which he stored in a vacant house next door to where he was residing with a view to using it as “security” for payment of compensation by the applicant for the damage done to his car tyre. Shortly after the applicant learnt of what the respondent had done he and three of his associates (including his brother) “visited” the house where the respondent was residing with a woman. The applicant at some stage armed himself with a “para spring” and with his three associates then knocked on the door of the house where the respondent was residing. The woman with whom the respondent was living “invited” the applicant and his three associates into the house. The applicant in the company of his associates “persuaded” the respondent to hand over the property belonging to the brother of the applicant which the respondent was holding to secure payment of compensation for the applicant's destruction of his motor car tyre. The respondent showed the applicant and his associates where the property had been stored in the vacant house next door. The applicant's brother checked through his bag and found that its contents (including a sum of money) were still in it and had not been interfered with. Thereupon the applicant and his three associates commenced to depart the residence occupied by the respondent and the woman with whom he was residing. The respondent emerged with a rifle and discharged it inflicting the arm injury upon the applicant. The whole incident in which the applicant suffered injury seems to have been motivated by the damage wantonly inflicted upon the respondent's motor vehicle tyre for no explicable reason by the applicant. Thereafter both the applicant and the respondent resorted to self-help -- 6 of 8 -- 5 resulting in violence and threats of violence instead of reporting the matters which offended them to the police; this led ultimately to the applicant's injury. The applicant and his associates were clearly aware that the respondent rightly or wrongly had taken possession of property owned by the applicant and/or his brother for the purpose of forcing the applicant to compensate him for the damage he had inflicted on his property. Instead of reporting the matters to the police and seeking their assistance he armed himself with a weapon and in company with his three associates “stood over” the respondent to recover possession of the property held without apparently making any effort to pay for the damage he had so wantonly occasioned to the respondent's property. In light of the retaliatory damage already inflicted upon his property perhaps this is understandable. In the circumstances of the case I have decided that in spite of the applicant's behaviour which viewed in its entirety both directly and indirectly caused the injury inflicted on him by the respondent, this is a case where I should order compensation. On the other hand the behaviour of the applicant was such as to justify a significant reduction in the compensation which I would otherwise have ordered. There has been a significant period of delay in bringing this application. I have had regard to the reasons for it deposed to in the material which to no small extent relate to difficulties he had in maintaining employment as the result of the significant treatment he required for his injured arm and the effect that had on his obtaining and retaining legal aid which his financial resources required that he have to bring this application. There were also difficulties in effecting service on the respondent. I would assess compensation in respect of the physical injury suffered by the applicant including loss of income, expenses, etc in the sum of $12,000. -- 7 of 8 -- 6 I would assess compensation for nervous shock involving post traumatic stress disorder in the sum of $10,000 making a total of $22,000 by way of compensation in all. Having regard to the extent to which the behaviour of the applicant directly and indirectly contributed to the inflicting of the grievous bodily harm on him, I make an award of compensation to be paid to him in the sum of $11,000. In the circumstances I order that the respondent pay the costs of the applicant to be taxed on the District Court scale appropriate to the sum of compensation awarded. -- 8 of 8 --