Davis, Re [1993] QSC 107

IN THE SUPREME COURT OF QUEENSLAND Motion No. 337 of 1991 Brisbane Before Mr. Justice B.W. Ambrose [Re Davis] AND: IN THE MATTER of THE CRIMINAL CODE OF QUEENSLAND IN THE MATTER of an application by RAYMOND DAVIS for compensation under S. 663B of the CRIMINAL CODE REASONS FOR JUDGMENT- B.W. AMBROSE J. Judgment delivered 22nd April 1993 CATCHWORDS Criminal compensation, attempted murder, physical injuries, nervousshock, Workers' Compensation Act. Counsel S.W. Sheaffe for the Applicant. Solicitors: Phillips Fox T/a for Henderson & Associates for the Applicant. Hearing date: 2nd April 1993. -- 1 of 11 -- IN THE SUPREME COURT OF QUEENSLAND Motion No. 337 of 1991 IN THE MATTER of THE CRIMINAL CODE OF QUEENSLAND IN THE MATTER of an application by RAYMOND DAVIS for compensation under S. 663B of the CRIMINAL CODE REASONS FOR JUDGMENT - B.W. AMBROSE J. Judgment delivered 22nd April 1993 At about 4.00 p.m. on 7th April 1990, the applicant then employed as a chauffeur was wounded by shots fired at him by Rodney John Dale. On 28th September 1990, Rodney John Dale was convicted upon his pleas of guilty of one count of murder and thirteen counts of at tempted murder. One of those counts was the attempted murder of the applicant. The offender committed all the offences to which he pleaded guilty within the space of a very short time when he proceeded to the Gold Coast Highway at Burleigh Heads, firing indiscriminately at various person$ who happened to be within his sight and range at that time, intending to kill them. The applicant when shot, was driving persons to a wedding. As he proceeded along the Gold Coast Highway at Burleigh Heads, he noticed the offender walking on the footpath with a rifle held at hip level and shortly after this was wounded several times by -- 2 of 11 -- 2 bullets fired by Dale towards the car that he was driving. He received bullet wounds to his left shoulder, left forearm and right thumb. He suffered a significant loss of blood and the wounds were painful. He received ambulance treatment and was taken to the Gold Coast Hospital at Southport, where he received injections for the pain he was suffering. The wound to his right thumb caused damage to the sinews and nerves in that thumb, and he has been left with a permanent numbness in it. The wound to his left arm/shoulder region has left him with a permanent loss of function.. Part of the muscle structure in his arm was destroyed leaving the arm weaker than it had been. As a consequence it aches most of the time and the applicant is no longer able to perform heavy work using it as he was able to do prior to his injury. Some of the bullets apparently that struck the applicant fragmented and passed through his body. Three scars were left on the applicant's back - one about two inches in diameter and two scars slightly smaller. The scarring causes the applicant no pain. The applicant has been left with a left arm that aches most of the time and there is a restriction on the movement of his right thumb in which the nerve was severed. The applicant received operative treatment at the Gold Coast Hospital on two occasions. He was in hospital all told for approximately seven days. Upon his discharge he received out-patient treatment. He was off work for a period of about four months when he received workers' compensation. He gave evidence that as the result of this period off work, he suffered a net loss of about $1,000 being the difference between the net sum he received for workers' compensation and the net sum he -- 3 of 11 -- 3 would have earned had he worked during the period of his rehabilitation. I treat one half of this financial loss as attributable to the wounds he sustained in the shooting and the other half to the nervous shock he sustained. The applicant appears to have suffered a significant emotional trauma as the result of the wounding and the observations he made of the offender as he attempted to kill him. This trauma manifested itself within a few weeks of his admission to hospital and Dr. Chalk, the senior medical officer of the psychiatrist unit at the Gold Coast Hospital, examined and counselled the applicant for the first time about three weeks after the wounding. When first seen by Dr. Chalk, the applicant was very distressed and emotionally labile. He was complaining of sleeping difficulties and recurrent recollections about the offender's shootings which caused him and others disability. Shortly after his injury, the applicant suffered a change in personality and became uncharacteristically wary and emotional. He became increasingly security conscious and became startled at the least noise. In a report of 16th May 1990, Dr. Chalk expressed the view that the applicant was probably suffering from a post-traumatic stress disorder, the progress of which was uncertain and which would depend to some extent upon his physical capacity to return to paid employment. In fact after the applicant returned to work as a chauffeur on the Gold Coast, his stress disorder did not subside. He worked for a period of about two years during which time his life seems to have been miserable. Eventually he discussed the matter -- 4 of 11 -- 4 with his doctor who agreed with what the applicant suggested that it would be best if he resigned and went onto a social security benefit. At least this is the evidence that the applicant gave. He explained to Dr. Chalk who saw him on 2nd April 1993 that he left his employment because of diminished interest in and enthusiasm for his work, as well as the "post-traumatic symptoms" which he exhibited. Dr. Chalk expressed the opinion that the applicant has suffered and still suffers from a post-traumatic stress disorder which is chronic. He said that given passage of time it is unlikely that his symptoms will persist although their severity may wax and wane in the future. He expressed the view that the applicant may suffer from continued periods of depression particularly having regard to the losses he has suffered as the result of his injury. Dr. Chalk expressed the view that the applicant was always a "work oriented" man and somewhat obsessional in his approach to his work. He said that this personality of the applicant makes him feel very keenly his perceived losses. The applicant's wife, according to Dr. Chalk, best sums up the changes she has observed in the personality of the applicant- "Raymond was my protector but now I am his". By reason of the applicant resigning from his job as chauffeur one year before he reached retiring age, he has lost an income for twelve months of approximately $20,000. He does receive a social security pension of $198 per fortnight which I take into account in calculating that as the result of his early retirement the applicant has lost a little under $15, 000 in wages. -- 5 of 11 -- 5 By far and away the most serious injury which the applicant has suffered as the result of his wounding is the post-traumatic stress disorder from which he still suffers and which it is likely he will suffer for some time in the future. Section 663B permits an order to be made against the offender that he pay to the applicant a sum "not exceeding the prescribed amount by way of compensation for injury suffered by him by reason of the offence or offences of which the offender is convicted". Under the interpretation section 663A, injury is defined to include inter alia "mental shock and nervous shock". Under s. 663AA the prescribed amount for the purposes of this application "in the case of mental shock or nervous shock is $20,000". In R. v. Castle and Hughes ex parte Hansen [1990] 1 Qd.R. 560, Connolly J. considered an application for compensation where the applicant suffered a stab wound to the left side of the chest and was diagnosed as also suffering from "post-traumatic stress of an acute character". There was no injury specified in the table set forth in s. 1 4 ( 1 ) (c) of the Workers' Compensation Act 1916-1 988 in respect of the stab wound to the chest. Observing that s. 14(1)(C) of the Workers' Compensation Act "plainly contemplates an assessment by analogy with the provisions of the Workers' Compensation Act where there is anything in that Act in relation to and by comparison with which the assessment could be made''. His Honour then observed: "As there is so far as I can see nothing analogous in this case there would appear to be no limit on theamount of compensation which may be awarded". -- 6 of 11 -- 6 His Honour was clearly referring to the award of compensation for the stab wound in the chest and not for the "post-traumatic stress of an acute character". In assessing the whole of the compensation, His Honour allowed the applicant $5,000 "for nervous shock", and for loss of earnings he allowed $15,000. He awarded an additional sum of $4,656 with respect to various other financial losses she suffered as the result of her injury. In my view Ex parte Hansen is authority for the proposition that "post-traumatic stress of an acute character" amounts to "nervous shock" within the meaning of s. 663AA of the Code. The evidence as to the disability of the arm and thumb as the result of the wounds inflicted upon the applicant by the offender is not very precise. I accept the applicant's evidence as to the effect on his lifestyle of those injuries and refer to the compensation tables to be found in s. 8.6 of the Workers' Compensation Act of 1990. Sections 8 and 9 of the Acts Interpretation Act 1954-1989 require that "amending" or "re-enacting" Act of 1990 to be applied in lieu of s. 14 of the repealed Workers' Compensation Act 1916-1988. Section 8.31(b) fixes the total compensation payable under s. 8. 6 as being $67,000. When one then goes to s. 8.6(1) the loss of a thumb attracts 30 per cent of that allowance whereas the loss of a joint of a thumb attracts 16 per cent. Section 8.6(2)(b) permits if not requires that a partial loss of function be assessed as a percentage of total loss. On my assessment of the loss of function of the applicant's thumb together with the effect of the destruction of the nerve giving sensation to the thumb, I would -- 7 of 11 -- 7 assess compensation for his thumb injury at 10 per cent of the sum of $67,000 which is $6,700. With respect to the loss of an arm, the table prescribes 80 per cent of the maximum sum for compensation. The percentage for loss of a hand or of the lower part of an arm is fixed at 70 per cent. Doing the best I can on the rather imprecise evidence as to loss of function of the applicant's left arm, I would assess for the purpose of application of the table in s. 8. 6 ( 1 ) , a percentage loss of function of the left arm at 15 per cent, which is $10,050. The total assessment of compensation therefore for the injury to the applicant's thumb and left arm including the financial loss of $500 in respect of income lost while on workers' compensation is $17,250. (Vide. s. 8.11 of the Workers' Compensation Act of 1990.) With respect to the chronic post-traumatic stress disorder from which the applicant suffers, I take the view that the limitation of $20,000 under s. 663AA of the Code applies. In taking this view I follow the decision of Connolly J. in Ex part Hansen (supra). I have regard also to what appears in Forensic Medicine by Bowden at pp. 250-252. That author there observes inter alia: 11 Shock is a term that has been applied to a number of states seen clinically. It is usually subdivided into primary shock and secondary shock or true shock (surgical shock or traumatic shock) which is a state of profound depression of the central nervous system accompanied by a diminished circulatory blood volume and a marked fall of blood pressure 11 • - At p. 252, under the heading of 11 Mental Shock 11 , the author continues: 11 Increasing use is being made of the term 'shock' in a different sense from the foregoing. It is used in -- 8 of 11 -- 8 the sense of severe mental upset disturbance or distress not necessarily due to any bodily injury or violence; there may not be physical contact." In my view the chronic post-traumatic stress disorder from which the applicant suffers can properly be categorised as "severe mental upset disturbance or distress" and it is this condition which is contemplated by the definition of "mental shock or nervous shock" in s. 663. I am unpersuaded on the evidence that the applicant needed to cease work which he voluntarily did after discussing that course with his doctor. I do not have any report from the doctor who, according to the applicant, agreed with the applicant's suggestion that he give up being a chauffeur. r-t is not clear to me on the material that it was reasonably necessary for the applicant to do this, and the reasonableness of the applicant taking this course is not really touched upon in the report of Dr. Chalk who simply states that the applicant told him about the persistence of symptoms relating to stress and that he "eventually left because of diminished interest, enthusiasm and post-traumatic symptoms". I am unpersuaded that having worked as a chauffeur for two years upon resuming work after his injury, it has been shown that the applicant could not have continued to work if he applied himself to that task in the final year of his working life. The most that can be said is that the symptoms suffered by the applicant as a consequence of the shooting have played a part in his decision to retire from working as a chauffeur. However, having said all that it is clear that the applicant has suffered from a severe and disabling post-traumatic stress -- 9 of 11 -- 9 disorder. It has resulted in a change of his personality. He has suffered from intermittent depressive symptoms. He suffers from continuing nightmares relating to the injury inflicted upon him by the offender and he is quite apprehensive of some person or persons doing further physical injury to him without any understandable reason. With respect to his post-traumatic chronic stress disorder, I award compensation to the applicant in the sum of $15,000. To this sum must be added $500 for the loss of income attributable to this condition while he was receiving workers' compensation. All told therefore I assess compensation under this head in the sum of $15,500. As I read s. 663AA there is a limit of $20,000 for an award of compensation for "mental shock or nervous shock" and a limit of $67,000 upon the total award of compensation for all other injuries of the sort found in the table in s. 8. 6 ( 1 ) of the Workers' Compensation Act 1990. I take the view that the limit of $67,000 applies to the total of any award for lost income and any award for injury leading to that income loss. Similarly, I proceed on the basis that the limit of $20,000 for mental or nervous shock applies to the total of any award for lost income and any award for the mental or nervous shock leading to that income loss. Upon the facts of the present case it is unnecessary to determine whether the maximum compensation which may be awarded to the applicant in respect of his injuries is $67,000 or $87,000, although a benign construction of s. 663A as a piece of remedial legislation would suggest a limit of $87,000. -- 10 of 11 -- 10 All told then I assess by way of compensation for the applicant the sum of $32,750. I order that the offender pay the applicant the sum so assessed together with the costs of this application which I fix at the sum of $1,500. -- 11 of 11 --