Deede v Irwin [2004] QDC 156

DISTRICT COURT OF QUEENSLAND CITATION: Deede v Irwin [2004] QDC 156 PARTIES: Sheridan Renae DEEDE V John Donovan IRWIN FILE NO/S: 637/04 DIVISION: PROCEEDING: Originating Application ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 27 May 2004 DELIVERED AT: Brisbane HEARING DATE: 13 May 2004 JUDGE: Hoath DCJ ORDER: I order that the respondent pay the applicant the sum of $11,250 by way of criminal compensation as a result of the offence of serious assault of which the respondent was convicted on 9 July 2002. CATCHWORDS: CRIMINAL LAW – Compensation – where applicant was a police officer who was struck in the chest – where another police officer struck the respondent in an attempt to restrain the respondent causing the respondent’s blood to be smeared on the applicant’s forearm – turns on own facts. LMW v Nicholls (2004) QDC 118 considered. COUNSEL: Mr Harrison for the applicant No appearance for the respondent SOLICITORS: Blue Justice (a division of McCowans Solicitors) for the applicant. No appearance for the respondent. [1] The applicant Sheridan Renae Deede is a single 33 year old Senior Constable of Police stationed at Petrie Police Station. On the morning of 14th November 2001, -- 1 of 5 -- 2 she was on duty at that station when in company with another male police officer they took hold of the respondent John Donovan Irwin to return him to a cell in the Station Watchhouse. [2] When taken hold of the respondent reacted violently and elbowed the applicant in the chest and pushed her into a wall. Other police officers then restrained the applicant by striking him with a baton and spraying him with capsicum. As a result of those actions blood from the respondent was smeared on the applicant’s forearms. Being elbowed in the chest caused the applicant severe pain and she had difficulty breathing which was aggravated by the use of the capsicum spray. The applicant also suffered scratches to her arms as a result of her attempts to restrain the respondent. [3] Immediately after the incident the applicant washed the blood off her arms and applied a disinfectant gel. Later that morning she went home and spent the next three days in bed and resting. [4] On the 18th November the applicant presented at St Andrew’s Hospital complaining of pain over her right side ribs especially when coughing, moving or laughing. On examination no bruising was apparent and x rays revealed no rib fractures. At the same time serelogical testing for Hepatitis B and C and HIV returned negative results. [5] On the 16th January 2004 the applicant was seen by Dr Christopher Slack, a specialist psychiatrist for the purposes of an assessment for this application. The applicant informed Dr Slack that approximately 12 months prior to the present offence she had been subject to another traumatic incident which she was getting -- 2 of 5 -- 3 over at the time of this offence, that she had a past history of emotional disturbances after a relationship break-up some years previously and that she was being treated by a general practitioner for symptoms of chronic fatigue. [6] The applicant told Dr Slack that she now became very fearful when she had to deal with aggressive men, that she feels that she has become more irritable in her dealings with the general public; that her relationship with her family has deteriorated; that she has a feeling of detachment and being cut off from people and that her enjoyment of life seems to have diminished since the incident. [7] She also informed Dr Slack that because of her fear of having contracted an infectious disease she had to avoid close contact with a man with whom she was in an intimate relationship. The relationship ceased soon after and the applicant feels that the offence may have played a part in that breakdown. [8] As a result of the offence committed upon her, Dr Slack was of the opinion that the applicant “suffered extreme distress and fear for her personal safety. She has suffered persistent anxiety which persists to this day and is present in her day to day dealings with the general public and, in particular, with any potentially aggressive males. There is a general loss of confidence in her policing duties. Subsequent to the incident she has also suffered an effect on her personal relationships with family and close friends. There is an element of depressed moods with some sort of sense of hopelessness about the future.” [9] In Dr Slack’s opinion the applicant was suffering from an adjustment disorder and the ongoing distress “could best be conceptualised as 90% related to the latter incident and 10% related to the preceding traumatic incident.” -- 3 of 5 -- 4 [10] The amount of compensation an applicant is entitled to under the Criminal Offence Victims Act does not involve applying principles used in assessing damages in common law actions for personal injury but is limited to the amount specified or within the range specified for an injury referred to in the Compensation Table in Schedule 1 of the Criminal Offence Victims Act with the maximum prescribed reserved for the most serious cases and other cases to be scaled down accordingly. [11] In this particular case I am satisfied that the applicant suffered bruising, mental and nervous shock, an injury to her chest and lacerations to her forearms. Those injuries are all referred to in the Compensation Table with prescribed percentages set out against them. [12] Although Dr Slack attributes 10% of the applicant’s ongoing distress to the preceding traumatic incident there are other factors in the applicant’s background, namely the relationship breakup some years previously and the chronic fatigue which are not insignificant and must be taken into account when determining the extent of mental and nervous shock attributable to the offence committed upon her by the respondent. [13] Judge McGill in LMW v Nicholls (2004) QDC 118 refers to a number of decisions where assessments for mental and nervous shock have been made. An examination of those decisions suggests that an appropriate assessment in this case for mental and nervous shock would be 10% of the Scheme maximum, namely $7,500. [14] The chest injury resolved within several weeks and a reasonable assessment of the applicant’s entitlement in respect of that injury is 4% of the Scheme maximum, namely $3,000. The lacerations or scratches to the applicant’s arms were very -- 4 of 5 -- 5 minor and a reasonable assessment of them would be the minimum 1% of the Scheme maximum, namely $750. [15] I order that the respondent pay the applicant the sum of $11,250 by way of criminal compensation as a result of the offence of serious assault of which the respondent was convicted on 9 July 2002. -- 5 of 5 --