Farrell, Re [1992] QSC 237

TRANSCRIPT OF PROCEEDING~ State Reporting Bureau, 4th F1oor, The Law Courts, George Street, BRJSBANE. 0. 4QQ.Q Tel. (07) 227.4360 (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.) /J SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No 341 of 1991 IN THE MATTER OF THE CORPORATIONS LAW Plaintiff ) and IN THE MATTER OF QUEST EXPLORATION PTY LTD Defendant ,) BRISBANE .. DATE 13/7/92 JUDGMENT 1 -- 1 of 14 -- BRISBANE •. DATE 13/7/92 ' I JUDGMENT 10 20 0 0 30 0 40 0 50 60 2 -~----~-----~---- -~~--~··-- ·- -- 2 of 14 -- .. 130792 JUDGMENT HIS HONOUR: The orders in these matters, which were argued together, will be the following: I order that the respondent pay $55,850 by way of compensation to the applicant, Marjorie Nancy Farrell, with costs to be taxed. I order the respondent to pay to the applicant, Philip Gordon Lyons, the sum of $25,000 by way of compensation, with costs to be taxed. 'l'he onrers.for costs will include any reserved costs to be taxed. 3 10 20 30 40 50 60 -- 3 of 14 -- IN THE SUPREME COURT OF QUEENSLAND Before Mr. Justice Mackenzie Counsel: Motion No. 296 of 1992 IN THE MATTER of the Criminal Code and IN THE MATTER of The Queen v. Arthur James Farrell and IN THE MATTER of an application by MARJORIE NANCY FARRELL for crminal compensation pursuant to s. 663B of the Criminal Code Motion No. 295 of 1992 IN THE MATTER of the Criminal Code and IN THE MATTER of The Queen v.Arthur James Farrell and IN THE MATTER of an application by PHILIP GORDON LYONS forcriminal compensation pursuant to s. 663B of the Criminal Code JUDGMENT - MACKENZIE J. Dated the 13th day of July 1992. M. Amerena for the Applicants. W. Isdale (amicus curiae) on behalf of theAttorney-General -- 4 of 14 -- 2 Solicitors: Callaghan & Reidy for the Applicants. K.M. O'Shea, Crown Attorney-General. Hearing date: 9th June 1992. Solicitor, \-- for the -- 5 of 14 -- ·.__ __ ' / IN THE SUPREME COURT OF QUEENSLAND Motion No. 296 of 1992 IN THE MATTER of the Criminal Code and IN THE MATTER of The Queen v.Arthur James Farrell and IN THE MATTER of an application by MARJORIE NANCY FARRELL for criminal compensation pursuant to s. 663B of the Criminal Code Motion No. 295 of 1992 IN THE MATTER of the Criminal Code and IN THE MATTER of The Queen v.Arthur James Farrell and IN THE MATTER of an application by PHILIP GORDON LYONS forcriminal compensation pursuant to s. 663B of the Criminal Code JUDGMENT - MACKENZIE J. Dated the 13th day of July 1992. These are applications by Marjorie Nancy Farrell and Philip Gordon Lyons for compensation under Chapter LXV A of the Criminal Code. The respondent was convicted of attempted murder, grievous bodily harm and burglary. Each of the applicants suffered "an injury" within the meaning of the Criminal Code. The respondent -- 6 of 14 -- --- ··--·-··--·---- 2 is thus liable under s. 663B to be ordered to pay to each of the applicants, a sum not exceeding the prescribed amount by way of compensation for injuries suffered by them. The injuries suffered were caused during the invasion of the home, shared by the applicants, by the respondent who was the estranged husband of Mrs. Farrell. They had been separated for about twelve months at the time, and in February 1990 she had taken out an order under the Domestic Violence (Family Protection) Act. She and Mr. Lyons had been sharing the premises since August 1989. On the day of the shootings the respondent 0 and Mrs. Farrell had arrived separately a.t their daughter's residence where the respondent abused Mrs. Farrell and made 0 threats against her and Mr. Lyons. She went home and three hours or so later, the respondent arrived and the incident giving rise to the claims occurred. In the circumstances, I do not think that s. 663B(2) requires me to reduce the amount of the order by reason of any conduct of either applicant or by reason of the fact that the respondent was the husband of the female applicant. () I should also note that this application was not brought (_) until almost two years after the incident to which the cl.aim relates. In R. v. Muckan [1975] Qd.R. 393, 398, the aspect of delay was adverted to. In my opinion, a delay of this magnitude may well put an applicant at risk of having an order refused unless there is good reason for the delay. However, I was not urged to refuse orders by either counsel and I will not do so in the circumstances. ------··~--· -- 7 of 14 -- 3 Mr. Lyons was on the verandah of the residence when the respondent arrived, armed with a gun. As Mr. Lyons attempted to go inside he was hit by shotgun pellets in the right upper thigh and then in the upper back and the back of his head. He spent 20 days in hospital and developed thrombosis in both legs. A skin graft had to be done to repair the wound to his right leg. He still has pellets in various parts of his body, some of which occasionally cause discomfort. He suffered mental shock or ~~\ 1 1 nervous shock within the meaning of the Chapter LXV A of the Code but from the medical reports his condition is not now as bad as that of Mrs. Farrell. Mrs. Farrell was in the toilet and the bathroom when the incident involving Mr. Lyons was occurring. She heard shots being fired and shut herself in the bathroom leaning against the door to keep it shut. Shots were fired by the respondent and one damaged her right hand. She lost the ring finger and little finger and part of the palm and suffered a degree of loss of the use of the middle and index fingers. Her right hand is close to useless. She also suffered wounds to her right arm which healed after two to three months leaving some residual .scarring. She also suffered "mental shock" within the meaning of the Code, a condition that persists. She also required skin and bone grafts which caused discomfort at the donor sites. Chapter LXV A creates a number of issues relating to its application. A threshold question was raised concerning the Workers' Compensation statute that was applicable by reason of the fact that between the time of the injury and the time of making of the application, the Workers' Compensation Act 1916 was -- 8 of 14 -- 4 repealed by the Workers' Compensation Act 1990. However, on the proper construction of Chapter LXV A I am satisfied that the latter is not the law that is applicable at the time of the application which determines the entitlement. In this case, both the injury and the conviction occurred while the Workers' Compensation Act 1916 was in force and it is to that Act that I should have recourse. At both the time of injury and of conviction, the amount specified in s. 14(1)(C)(a) of the Workers' Compensation Act was $55,850.00. The next question concerns the application of ss. 663AA(2) and ( 3). The former prescribes that where an injury in connection with which an application is made is the same or substantially the same as an injury in the table, the prescribed amount is the maximum amount that may be paid in respect of an injury specified in the table. The latter prescribes that where injury consJ.--sts of more injuries than one, the prescribed amount is the amount specified ins. 14(1)(C)(a). It is plain enough that the legislative intention was that if there was a single injury which forms the basis of the claim that is the same as or () () substantially the same as an injury in the table, the maximum () amount of compensation is not to exceed the amount in the table. If the injury which forms the basis of the claim amounts to more injuries than one, the amount is not to exceed the amount in s. 14(1)(C)(a). Where first used in those provisions "injury" is used as a term to described the aggregate of the consequences to the person of the person. In each case the applicant has suffered "more injuries than one". -- 9 of 14 -- 5 However, it was argued on the applicants' behalf that there was a difference of judicial opinion whether, in every case, the prescribed amount was the maximum amount of compensation which may be awarded. It was submitted that different conclusions had been reacherl in R. v. Castle and Hughes ex parte Hansen [1990] 1 Qd.R. 560, 561, and R. v. Hurle ex parte Anderson [1991] 2 Qd.R. 682, 684. I respectfully adopt the conclusion reached by Ryan J. in the latter case that in no case can compensation 0 exceed the "prescribed amount". A further limitation is to be found ins. 663A(1) where the 0 "prescribed amount" for mental or nervous shock is $20,000.00. The effect of this is to limit compensation for that component of a claim to a maximum of $20,000.00. It does not impose a $20, 000.00 cap on the total amount of compensation if a claim for mental or nervous shock is made in conjunction with other physical injuries, but the total award, including the component () for mental or nervous shock, cannot exceed the "prescribed amount". The remaining question is whether the basis upon which compensation is to be assessed is the full tortious measure of damages or whether some other basis is to be used. I was provided in the outline of the applicants' arguments with calculations which include a full range of components, past and future, that would be sought in a civil damages claim. There are numerous single Judge decisions referring to the method of assessment. Detailed analysis of each of them is unprofitable because in many of them the expressions used reflect the facts of the individual cases. While the proposition that -- 10 of 14 -- / /j -~.I 6 regard should be had to ordinary principles of assessment of damages has been stated expressly in·some case (see for example, R. v. Allsopp (1972) Q.W.N. 34; R. v. Wraight and Dakin ex parte Fullerton [1980] Qd.R. 582, 583) and said, obiter, to represent the accepted principle (R. v. Stieler [1983] 2 Qd.R. 573, 575) the approach in practice has been not to particularise the components of the award in the same way as in an action for damages (see for example, R. v. Johnson ex parte McLeod [1973] Qd.R. 208, 209-210). Further, Mr. Isdale referred me toR. v. Clarke ex parte Conboy (unreported, Ryan J., 1 September 1988) in which Ryan J. said the following: "In R. v. Callaghan and Fleming, Connolly J. observed that the compensation is for injury and not for economic loss. But while jurisdiction to make an order depends upon the existence of an injury compensation is not limited to damages for physical or mental injury. In R. v. Johnson, ex parte McLeod (1973) Qd.R. 208, Kelly A.J. (as he then was) said that in determining compensation for injury, regard may properly be had not only to the physical and mental consequences to the person aggrieved but also to any monetary loss he had suffered by reason of the loss. In that case, compensation was determined having regard to monetary loss by way of loss of wages and medical expenses incurred. In Re Poore (1973) 6 S.A.S.R. 308, it was said that a court should assess what would be payable according to the principles applicable to an award of damages in a civil suit. However, the considerations in awarding criminal compensation include some which are not relevant in a civil trial. Criminal compensation is, as Jacobs J. said in R. v. Forsythe (1972) 2 N.S.W.L.R. 951, a form of compensation sui juris. As Reynolds J.A. said in the same case, at p. 955, s. 663B:- 'does not call for a categorization of injuries in terms of seriousness proportional to their severity nor for a detailed assessment of the damages that might be properly awarded at common law ... What the section contemplates is a direction as to a figure arrived at in- a broad and 0 0 () 0 -- 11 of 14 -- n 7 summary way, having regard to the matters enumerated in [s. 663B(2)]'." It is not necessary to express an opinion whether, and if so to what extent that represents a different approach to the basis of calculating an award of compensation. At least it confirms that monetary loss can be included in the award and is consistent with the notion that separate identification of heads of damages is not· appropriate in making the award. I also observe that the point made by Connolly J. in R. v. Callaghan and Fleming ex parte Power [1986] 1 Qd.R. 457, that compensation is for injury and not for economic loss has some force when one () considers that the original purpose of the legislation was to provide a summary means of enabling a victim of personal violence to obtain compensation for the injury. The use of the word "damages" was avoided and the intention was not to provide an alternative means of obtaining damages. The preservation of the right to sue for damages highlights the essential difference in() concept quite apart from the restriction on the amount that might be obtained under Chapter LXV A. I turn now to the individual claims. Mrs. Farrell suffered serious injury to her hand which in functional terms now approaches total loss of one hand although she can perform some limited tasks with difficulty. She also suffered mental or nervous shock which persists and which is a major component of her restricted ability to work. When all relevant factors are considered, I am satisfied that she is entitled to the maximum award that I can make. In her case I order the respondent to pay to the applicant $55,850.00 by way of compensation. -- 12 of 14 -- 8 In Mr. Lyon's case, he had been a Commonwealth driver since 1986. He suffered a wound to his leg which at times is subject to cramps and stiffness. It is not disabling and is of the nature of a discomfort rather than a disability. He has occasional discomfort from shotgun pellets remaining in certain locations in his body. He suffered mental or nervous shock which has caused post-traumatic stress disorder. However, while he still suffers some effects, his recovery has been on the evidence better than Mrs. Farrell's. His condition would not prevent him from working if he was able to find employment. He took a redundancy package in September 1990 less than four months after the incident because he thought at that time that he would not be able to go back to work. The taking of the redundancy led to the acceleration of certain benefits although precisely on what basis they are calculated is not indicated in the material before me. More importantly, I am not satisfied that the calculations provided to me by Mr. Amerena as to economic loss, both past and future, would be sustainable in a civil action. There is no doubt that Mr. Lyons has suffered some loss as a result of the incident and he should be compensated for that. One further aspect that I should note is that insofar as it may be said that the post-traumatic stress disorder caused Mr. Lyons to take his redundancy, any award on the basis of economic loss caused thereby would be limited to $20,000.00 in any event. $25,000.00. On the material before me I will award Mr. Lyons \I 0 0 () CJ -- 13 of 14 -- () 9 The question of costs of the present applications remains to be considered. The practice now seems to be generally accepted of allowing costs and I order in each case that the respondent pay the costs of the applications to be taxed to the applicants. 1 • 2. The formal orders will be the following: I order the respondent to pay $55,850.00 by way of compensation to the applicant Marjorie Nancy Farrell with costs to be taxed. I order the respondent to pay to the applicant Philip Gordon Lyons the sum of $25,000.00 by way of compensation with costs to be taxed. -- 14 of 14 --