Brodby, Re [1994] QSC 263

IN THE SUPREME COURT OF QUEENSLAND No. 484 of 1994 Brisbane Before Mr Justice Ambrose [Betty Brodby] IN THE MATTER of the Criminal Code - and - IN THE MATTER of an application by BETTY BRODBY for compensation for injury pursuant to s.663B of the Criminal Code REASONS FOR JUDGMENT - AMBROSE J. Judgment delivered : 06/10/1994 CATCHWORDS: CRIMINAL LAW - Compensation - s.663B of the Criminal Code - Claimant shot in left thigh - Permanent damage to use of leg - Claimant suffered significant emotional problems - Claimant was unaware of rights to apply for compensation - delay disregarded Counsel: P. J. Murphy for the Applicant No appearance for R.J. Dale Solicitors: Caxton Legal Centre Inc for the Applicant Hearing Date: 29 September 1994 -- 1 of 5 -- IN THE SUPREME COURT OF QUEENSLAND No. 484 of 1994 Brisbane Before Mr Justice Ambrose [Betty Brodby] IN THE MATTER of the Criminal Code - and - IN THE MATTER of an application by BETTY BRODBY for compensation for injury pursuant to s.663B of the Criminal Code REASONS FOR JUDGMENT - AMBROSE J. Judgment delivered : 06/10/1994 This is an application by Betty Brodby for compensation pursuant to s.663B of the Criminal Code. On 7 April 1990 at about 4 p.m. the applicant was a passenger in a motor vehicle being driven by her husband in a northerly direction on the Gold Coast Highway at Burleigh Heads. She was seated in the front passenger seat of that vehicle. As the vehicle in which she was a passenger negotiated a bend in the Gold Coast Highway at Burleigh Heads she observed a man dressed in black standing on the left hand side of the roadway holding a rifle pointed at her. She saw that he was firing the rifle. She suffered severe pain in her left thigh. Her husband drove the motor vehicle to the Gold Coast Hotel and the applicant kept her head below the dash board of the -- 2 of 5 -- 2 motor vehicle to avoid any further injury. The man who shot the claimant was Rodney John Dale who on 12 July 1991 pleaded guilty to one charge of murder and 13 charges of attempted murder. Mr Dale had apparently planned to commit these offences over a period of time and at the time he shot and wounded the applicant he intended to kill her. He embarked upon a wild shooting spree not knowing the identity of any of the persons he attempted to kill. The claimant was eventually placed in an ambulance and taken to Gold Coast Hospital where she was operated upon for a wound in the left thigh. She remained in hospital till 21 April 1990. She incurred hospital expenses in the sum of $1,600. Dr Saxby gave treatment to the claimant in the Gold Coast Hospital. Her wound required three operative procedures. She also required a blood transfusion because of loss of blood from the wound. According to Dr Saxby the complainant recovered completely from the physical effects of her wound. She was left with a cosmetic defect to her left leg. According to the complainant she was unable to walk without the assistance of a walking stick for three months after her discharge from hospital. She now finds that she has poor mobility and no longer enjoys activities involving walking. She has difficulty carrying out her usual household tasks and needs to obtain the assistance of her husband. She says her left leg continually aches and sometimes prevents her from sleeping. She suffers numbness, pain and cramps in her -- 3 of 5 -- 3 left leg and frequently her left foot has a tingling sensation and is sometimes numb. Doctors have attributed this condition to some damage to the nerves and veins in her left leg. She says her ankle becomes swollen and stiff and her leg aches from her thigh to her toes after relatively minor activity. As the result of her injury and the events immediately leading to it, the claimant has become very nervous. She no longer enjoys physical intimacy with her husband and she often feels anxious and depressed. She finds it difficult to cope with noise and traffic on the roadway. In September 1992 the claimant consulted a psychiatrist but found that on the only occasion she spoke with him she became frustrated. She thought she delayed too long her approach for psychiatric assistance. She has an obligation to refund $48.30 to a health fund should she recover compensation. The claimant says that she was unaware for a long time that she was able to apply for criminal compensation. In the circumstance, I disregard her delay in making application. The claimant's husband confirms the evidence of the claimant that her emotional health has changed and whereas she was previously a happy, carefree person, she is now anxious, nervous and depressed. At the time of her injury the complainant was about 67 years of age. At the time her claim for compensation was heard she was about 71 years of age. At all material times her husband had retired and she lived with him on the Gold Coast. With respect to the expenses she has had to meet by reason -- 4 of 5 -- 4 of the injuries inflicted upon her by Rodney Dale I award her the sum of $1,600 being hospital fees paid on 11 April 1990 - 21 April 1990. Further expenses incurred amount to $204.90 being: Hospital benefits refundable - $156.60 Medical Costs - $ 48.30 The claimant has not established any loss of earning capacity or any probable future expense flowing from her injury. She has however suffered significant emotional problems by reason of the trauma inflicted upon her by Rodney Dale. She was entitled to look forward to a happy retirement with her husband, but that expectation has been destroyed by the physical and mental trauma inflicted upon her by Rodney Dale. Nevertheless, having regard to the age of the complainant and the absence of any percentage loss of function of her left leg, she is fortunate that she was not more seriously injured. I take into account the physical pain that she still suffers four years from date of injury and also the psychological and emotional stress with which she must still cope. In addition to the sum of $1,804.90 for out of pocket expenses, I assess compensation generally in the sum of $14,000. Total compensation awarded is $15,804.90. I order Rodney Dale to pay the costs of the applicant which I fix in the sum of $3,000. -- 5 of 5 --