Elcham v Forster [2004] QSC 91

[2004] QSC 091 SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MACKENZIE J No BS1796 of 2004 PETER BOUTROS ELCHAM Applicant and WARREN LESLIE FORSTER Respondent BRISBANE ..DATE 29/03/2004 JUDGMENT 1 WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. -- 1 of 3 -- 29032004 T07/CAL8 M/T 1/2004 (Mackenzie J) 2 JUDGMENT 1 10 20 30 40 50 60 HIS HONOUR: This application for compensation under the Criminal Offence Victims Act 1995 is related to the matter of Forster v. Forster in which the facts are fully stated. There is no doubt that this applicant behaved courageously in intervening to disarm the offender. In the course of the struggle with the respondent over the weapon, the applicant was threatened with death and assaulted. He suffered superficial lacerations about a centimetre long, which broke the true skin to the right little finger. This was treated in the Accident and Emergency Department of the hospital with steri-strips, in the expectation that there would be no long-term effects. It was not suggested that there were any enduring consequences of this injury. It is therefore, in my view, at the bottom end of the scale for such injuries. However, a more persistent injury, in the form of mental or nervous shock, is also relied on. The applicant says the incident has had a detrimental effect on him, socially and mentally. He has a fear of people he does not know and a fear for his safety and of public places. He suffers flashbacks of the assault and is more impatient, irritable and aggressive with family and customers. He is more easily depressed than he once was. He feels more anxious, vulnerable and uncomfortable in his everyday tasks, which has reduced his ability to run a business and maintain a healthy relationship with his family and friends. -- 2 of 3 -- 29032004 T07/CAL8 M/T 1/2004 (Mackenzie J) 3 JUDGMENT 1 10 20 30 40 50 60 Dr Fredericks, a psychiatrist, gave an opinion that the applicant was not suffering from any specific psychiatric disorder, but has suffered psychological and behavioural changes as a direct consequence of the traumatic effects or nervous shock associated with the incident. In consequence, he suffers from intermittent mild impairment in his social and occupational functioning. Dr Fredericks is of opinion that the problems will lessen progressively with time. No specific treatment is necessary. The applicant should not suffer long-term effects. The claim was framed in the submissions on the basis that the mental or nervous shock fell at the level of moderate mental shock. It was placed at 20 per cent. I think, on the evidence, that is quite high. I would have thought, having regard to the diagnosis of Dr Fredericks, that the mental or nervous shock should more properly fall within the mid range of the minor range. Accordingly, I would place the mental and nervous shock at five per cent and wound at one per cent, making a total of six per cent. That would produce an award of $4,500. I make an order in the sum of $4,500. ----- -- 3 of 3 --