Albert v O’Keefe [2004] QDC 232

DISTRICT COURT OF QUEENSLAND CITATION: Albert v. O’Keefe [2004] QDC 232 PARTIES: Sean James ALBERT V Gaylene Isabel O’KEEFE FILE NO/S: D2679/03 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 13 August 2004 DELIVERED AT: Brisbane HEARING DATE: JUDGE: BC Hoath DCJ ORDER: I order that the respondent pay the applicant the sum of $22,312.50 by way of compensation for the injuries received by the applicant as a result of the offence of unlawful wounding of which the respondent was convicted on 7 March 2001. CATCHWORDS: CRIMINAL LAW – COMPENSATION – CONTRIBUTION – where applicant and respondent had been drinking together – where respondent stabbed the applicant - where applicant had punched the respondent and kicked her whilst she was on the ground a day or two prior to the offence – whether the applicant had “directly or indirectly” contributed to the injury. CASES JUDICIALLY CONSIDERED Gottfried v Wills and Attorney General [2004] QDC 002 – applied. Grahame v Dean [2001] QSC 420 – applied. Hohn v King [2004] QCA 254 – applied. -- 1 of 6 -- 2 LEGISLATION JUDICIALLY CONSIDERED Criminal Offence Victims Act 1995 s 25(7) COUNSEL: Mr A Kimmins for the applicant. No appearance for the respondent. SOLICITORS: Tony Bailey Solicitor for the applicant No appearance for he respondent [1] This is an application by Sean James Albert for criminal compensation pursuant to the Criminal Offence Victims Act 1995 for injuries received as a result of the offence of unlawful wounding of which the respondent Gaylene Isable O’Keefe was convicted on 7 March 2001 in the District Court at Mt Isa. [2] That offence was committed on 31 October 2000 when the respondent stabbed the applicant in the right leg. At the time they were living in a de facto relationship and were drinking with other persons in a residence at Mt Isa. The respondent wanted to borrow a vehicle to go and get some more alcohol. When the applicant told her she was too drunk to drive she abused him and then started fighting with another woman who had told her to be quiet. The respondent then armed herself with a knife and stabbed the applicant in the right leg just below the knee. At the time the applicant and the respondent were both drunk. [3] A day or two prior to the offence being committed the applicant had punched the respondent and kicked her whilst she was on the ground. The respondent’s motivation for stabbing the complainant was to revenge that earlier assault. [4] After the stabbing the applicant was taken to Mt Isa Base Hospital where examination revealed a 2 centimetre long laceration to his right lower leg. The -- 2 of 6 -- 3 wound was cleaned and the applicant was discharged from hospital on 4 November 2000. [5] The applicant returned to hospital on 10 November complaining of pain and swelling at the site of the wound. Further examination revealed a false aneurism which was repaired on 15 November. After that surgery the applicant developed some foot drop. On his discharge from hospital that foot drop was felt to be improving and it was considered that he should make a full recovery. [6] The applicant has not sought further medical attention. He however complains of numbness in his right foot and being unable to wriggle his toes. I have no other evidence as to the present extent if any of that disability or its prognosis. [7] In the affidavit of the applicant he does not refer to any psychological sequelae as a result of the offence beyond stating: “At the instigation of my solicitor I have consulted Mr T Ryan, psychologist, concerning the issue of post traumatic stress disorder. I also understand, having been informed by my solicitor, that the report of Mr T Ryan will establish the extent of (if any) post traumatic stress that I have suffered as a result of the attack upon me. Everything I told Mr T Ryan is true and correct in every respect.” [8] In a report of 5 February 2002 Mr Timothy Ryan states: “In addition to fearing for his life at the time of the assault Mr Albert stated that since the incident he has experienced the following on a regular basis: • Hypervigilance – Mr Albert appears to have generalised his anxiety and distrust stemming from the current assault to his current partner and consequently has been jumpy and hypervigilant when in her company. • Anger/irritability/Depression/anxiety – Mr Albert stated that these symptoms have primarily related to the ongoing physical impairment he has suffered as a result of the assaultive injuries and resultant reparative surgery. -- 3 of 6 -- 4 Elaborating on his physical impairment, Mr Albert stated that he underwent two reparative surgical procedures in relation to his assaultive injuries and claimed that since the second procedure, his right foot has suffered foot drop and almost complete loss of feeling. Mr Albert stated that the impairment in functioning in his right foot has meant that he has been unable to walk bare footed, something he has done most of his life. On a more traumatic note, Mr Albert stated that he has lived in fear since the second surgical procedure that he might lose the use of his right foot completely. Mr Albert stated that the complete loss of his foot would destroy his life, in that he would be unable to hunt, fish, walk, run or play football, all activities which he claimed to love. Mr Albert also reported the following since the assault: • A loss of enjoyment of life in general – On a seven point Likert scale of life enjoyment, with one being ‘extremely unhappy’ and seven being ‘extremely happy’ , Mr Albert stated that he would have scored a six prior to the assault and a three since its occurrence. • Personality change - Mr Albert advised that he was generally a happy, confident, easygoing and outgoing individual prior to the assault but defined his personality in terms of depression, anxiety and agitation since the incident.” [9] Mr Ryan concluded: “Having regard to all of the abovementioned, it is considered that the current assault has caused significant and ongoing impairment in Mr Albert’s emotional, psychosocial and physical functioning, which has caused considerable diminishment in his ability to enjoy everyday life. Hence it is considered that the current assault constitutes a severe nervous shock.” [10] In the absence of evidence from the applicant as to any symptoms of mental and nervous shock and the criticism made by Judge Boulton in Gottfried v Wills and Attorney-General [2004] QDC 002 of Mr Ryan’s methodology and conclusions I am not prepared to act on Mr Ryan’s assessment that the “current assault constitutes a severe nervous shock.” I accept however that there must be some allowance for mental and nervous shock. -- 4 of 6 -- 5 [11] A stab wound and mental and nervous shock are injuries set out in the Compensation Table in Schedule 1 of the Act. I assess compensation for the stab wound with some allowance for residual scarring at 25% of the Scale maximum. I assess mental and nervous shock at 10% of the Scale maximum. That gives a total of 35% of the Scale maximum, namely $26,250. [12] Section 25(7) of the Criminal Offence Victims Act provides: “In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example any behaviour of the applicant directly or indirectly contributed to the injury.” [13] In this case the reason for the respondent stabbing the applicant was that he had assaulted her by punching and kicking her one or two days previously. Had that assault occurred immediately before the stabbing there could be no doubt that a substantial reduction would be made on the basis of the applicant’s contribution to his own injury. [14] Should the fact that the assault on the respondent occurred one or two days previously mean that as a result of that lapse of time the applicant could not be said to have directly or indirectly contributed to his own injury? [15] In Grahame v Dean (2001) QSC 420 at para 34, Cullinane J said: “… the use of the words ‘direct or indirect’ suggests that a broad and commonsense approach rather than a technical and narrow approach is required.” More recently in Hohn v King (2004) QCA 254 Atkinson J referred to the statement by the Full Court of South Australia in South Australia v Abbel-Ghane: -- 5 of 6 -- 6 “It is a matter of judgment after a consideration of the whole circumstances and in particular in the light of the conduct of the victim that contributed to his or her injuries. Whilst it is the victim’s conduct which has to be considered, that conduct must be considered in the whole matrix of facts which involves a consideration of the conduct of the person who has committed the offence.” [16] In some cases the interval of time between two incidents may be such that it could not be said that the earlier event contributed to the later injury. In the present case the time interval between the initial assault and the stabbing was relatively short. Whilst a court cannot condone retribution, I am of the view that the applicant’s actions in assaulting the respondent one or two days earlier at least indirectly contributed to the injuries he now claims compensation for and his contribution to the injuries should be assessed at 15%. [17] I order that the respondent pay the applicant the sum of $22,312.50 by way of compensation for the injuries received by the applicant as a result of the offence of unlawful wounding of which the respondent was convicted on 7 March 2001. -- 6 of 6 --