Daley v Maloney, Pulbrook & Tessmer [2004] QDC 216

DISTRICT COURT OF QUEENSLAND CITATION: Daley v Maloney, Pulbrook & Tessmer [2004] QDC 216 PARTIES: JUDITH DALEY Applicant V JOHN BREMER MALONEY First Respondent and DALLAS MICHAEL PULBROOK Second Respondent and JOSHUA LEVII TESSMER Third Respondent FILE NO/S: No 57 of 2003 DIVISION: Civil Jurisdiction PROCEEDING: Criminal Compensation ORIGINATING COURT: Ipswich DELIVERED ON: 19 July 2004 DELIVERED AT: Ipswich HEARING DATE: 3 March 2004 JUDGE: Judge Richards ORDER: I order that the first respondent pay the applicant the sum of $15,000. I order that the second respondent pay the applicant the sum of $15,000. I order that the third respondent pay the applicant the sum of $15,000. CATCHWORDS: Criminal compensation- multiple defendants COUNSEL: Mr J Seaholme for the applicant SOLICITORS: Cervotto Courtice for the applicant There was no appearance for the respondents -- 1 of 5 -- 2 [1] The unfortunate applicant in these proceedings has been robbed on four separate occasions when she was the owner and operator of the Tivoli Hill store. She seeks compensation in relation to the last three of those incidents. THE FIRST ROBBERY [2] The first respondent Maloney robbed the applicant on 6 December 2000 at 12.20 p.m. On that day she heard someone at the till when she was at the rear of the store. She came out to the front of the store and saw the applicant carrying a knife with a blade of 9 inches. He demanded money and waved the knife in a threatening manner screaming “open the fucking till”. He started towards her with the knife and she screamed, ran out of the shop, grabbing a knife herself on the way. [3] He was sentenced on 23 May 2001 and a victim impact statement was tendered at that sentence. The applicant was seen by Dr Nigel Prior a psychiatrist in relation to all these robberies. [4] In relation to this particular robbery by the first respondent she said that after the robbery she was distressed and for some time was anxious if she was on her own in the store. She displayed increased vigilance, increased checking behaviour and tended to be more wary, staying towards the back of the shop. She had insomnia for a number of weeks and when awake she would think about the robbery and having to go to work the next day. Her general practitioner, Dr Jones noted that she had borderline depression and irritable bowel syndrome as a result. -- 2 of 5 -- 3 THE SECOND ROBBERY [5] The second respondent entered the applicant’s store on 1 September 2001 at 7p.m. He had a plastic bag over his head. She yelled at him to leave, pressed the alarm button, ran from the shop and called the police. At that stage he left the shop. She could see the assailant on the security monitor and eventually he fled. [6] As a result of that robbery she reported that she was upset, anxious, had insomnia and was waking up worrying about the incident. She had some irritable bowel symptoms such as constipation alternating with loose bowel motions, abdominal bloating and pain. She was increasingly vigilant and wary, more jumpy, less comfortable on her own with customers and became irritable with her partner. She said that she had decreased concentration and was less organised. She initially insisted that someone chaperone her in the store for the first couple of hours and then she would complete the rest of the shift by herself. She said that gradually she settled down and started to get her confidence back. THE THIRD ROBBERY [7] On 10 December 2002 at 6.30 pm the third respondent committed the robbery against the applicant. He entered the store demanding money. She ran to the back of the store and pressed the silent alarm. He had a pillow case over her head and was carrying a sawn-off gun. He attempted to open the till but was unsuccessful. He then left the store returning a second time. On that occasion he jumped the counter and again tried to open the till. He was again unsuccessful so he stole tobacco on the way out. By that time the applicant had run outside the store. She saw a customer standing at the counter and called him out of the store. -- 3 of 5 -- 4 [8] In relation to this robbery she was immediately fearful but also worried about her customers. She again began to experience anxiety, insomnia, irritable mood, low energy levels, poor appetite, hyper arousal and hypervigilance. She tended to dwell on the incident. She did not experience nightmares this time but she did have intrusive images of the gunman coming into the shop. She avoided attending the store and cut back her hours after the robbery calling in her staff instead to do the shifts. She particularly avoided the afternoon shift. [9] This behaviour decreased over time and she is now working 7-8 hours a day, five days a week. She has been referred to a psychiatrist for assessment but she feels that her feelings are something that she needs to work through herself. [10] Dr Prior has diagnosed the respondent as having an adjustment order with anxiety (chronic). She has many features of post traumatic stress disorder but not the full syndrome. She has experienced increasing anxiety, hyper arousal, hyper vigilance, neuro vegetative disturbance, some avoidance behaviour, loss of confidence and decreased trust in people. This was initially of moderate severity but has gradually decreased over time to be mild. She is now much less anxious, wary and vigilant. However she still reports a decrease in her confidence and is less trusting of others. She would benefit from psychotherapy and pharmacotherapy but she is likely to be left with a mild residual degree of anxiety relating to the incidents that specifically resemble those that occurred during the robberies. [11] It is a testimony to the applicant’s resilience that she has not suffered more severely at the hands of these respondents. She is indeed a very brave person but -- 4 of 5 -- 5 unfortunately I am not able to reward her for her bravery. I can only award her compensation according to the Act. [12] The three incidents are completely separate and accordingly separate awards should be made. In relation to the first respondent the applicant suffered moderate mental shock as a result of the incident and an award of $15,000 is appropriate. In relation to the second respondent she suffered further mental and nervous shock in the moderate category. An award of $15,000 is appropriate. In relation to the third respondent again she suffered mental and nervous shock in the moderate category. An award of $15,000 is appropriate. That makes a total award of $45,000. [13] I order that the first respondent pay the applicant the sum of $15,000 compensation for injuries resulting from a robbery occurring on 6 December 2000. [14] I order that the second respondent pay the applicant the sum of $15,000 for injuries resulting from a robbery occurring on 1 September 2001. [15] I order that the third respondent pay the applicant the sum of $15,000 for injuries resulting from a robbery occurring on 10 December 2002. -- 5 of 5 --