Barrell v Carson [2004] QDC 30

DISTRICT COURT OF QUEENSLAND CITATION: Barrell v Carson [2004] QDC 030 PARTIES: MARK BARRELL Applicant v ANTHONY NORMAN CARSON Respondent FILE NO: D169/03 DIVISION: Civil jurisdiction PROCEEDING: Application ORIGINATING COURT: Maroochydore District Court DELIVERED ON: 8 March 2004 DELIVERED AT: Brisbane HEARING DATE: 20 February 2004 JUDGE: Rackemann DCJ ORDER: I order the respondent to pay compensation in the amount of $20,250 to the applicant CATCHWORDS: CRIMINAL LAW – orders for compensation – bruising/laceration, mental or nervous shock, causation, whether involving reasonable, subsequent events, whether conduct contributing to injury COUNSEL: Mr S Courtney for the Applicant Mr J Parker for the Respondent SOLICITORS: Noel Woodall & Associates for the Applicant Ferguson Cannon O’Connor for the Respondent [1] The applicant claims compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 with respect to injuries suffered by him caused by a personal offence, namely an assault occasioning bodily harm, committed against him by the respondent on 8 February 2000, for which the respondent was convicted on indictment. -- 1 of 10 -- 2 [2] The assault was described by the sentencing judge as “quite a serious assault”. It occurred when, as the sentencing judge described, the respondent “approached him (the applicant) as he sat in his motor vehicle, punched him virtually without warning and pulled him from his car and continued to punch him.” [3] The court assesses compensation under the Act by reference to the individual injuries sustained and by applying sub-ss 25(4), 25 (5), 25(6) and 25(7) for that purpose. In arriving at the amount of the compensation order, the court then applies sub-ss 25(1), 25(2), 25(3) and 25(8). Where, as here, there is more than one injury, the first step is to arrive at the amounts in respect of each injury, the second to add those amounts together, and the third, to arrive at the amount of the compensation order.1 Where, as here, the injuries are specified in Schedule 1 of the Act, the amounts of compensation are to be scaled within the ranges set out in the table on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases2. [4] Applications for compensation are civil proceedings and issues of fact are decided on the balance of probabilities3. While the court is bound to have regard to the factual basis upon which the respondent was sentenced4, evidence additional to that led at the trial might be adduced provided it is not inconsistent with the jury’s verdict or the view taken of the evidence on sentencing5. In this case additional evidence was given by the applicant and the respondent. 1 R v Jones ex parte Zaicov [2002] 2 QD R 303 at 309-310 2 R v Ward ex parte Dooley [2001] 2 Qd R 436. 3 See s 30 Criminal Offence Victims Act 1995 4 R v Chong ex parte Chong [2001] 2 Qd R 301, R v Bennett ex parte Facer [2002] 2 Qd R 295 and Riddell v Coffey [2002] QCA 337. 5 R v Bennett ex parte Facer [2002] 2 Qd R 295. -- 2 of 10 -- 3 [5] The injuries in respect of which compensation is sought comprise bruising/lacerations and mental or nervous shock. Each of those injuries are of a type listed in Schedule 1 to the Act. [6] The bruising/laceration comprises a laceration to the applicant’s left forearm of approximately 10 centimetres, bruising to his right temple and bruising to his nose, buttocks and lips as noted by Dr Kirkman who treated the applicant at the Noosa Hospital on the day in question. Senior Constable Parkes, who attended at the scene of the assault also noted a cut to the applicant’s lip and swelling around the neck, face and head. The parties are in agreement that the bruising/laceration injuries should be assessed as “moderate” and be compensated in an amount equivalent to three per cent of the Scheme maximum, which is the maximum for that category. While I am conscious of the principle in Ward’s case, I am satisfied that the injury falls at the top end of the moderate category. [7] The parties are also in agreement that the applicant has suffered mental or nervous shock because of the assault and I am well satisfied that is so. The applicant contends that this injury should be assessed as “severe” and be compensated in an amount equivalent to 30 per cent of the Scheme maximum. The respondent contends that this injury should be assessed at no higher than “moderate” with an award of around 10-15 per cent of the Scheme maximum. [8] The applicant’s condition and its effects have been described and assessed by Dr Moyle, a psychiatrist, who provided two reports dated 24 April 2002 and 4 February 2003 respectively. I will not repeat the detail in those reports, the substance of -- 3 of 10 -- 4 which I accept. Dr Moyle is the only medical practitioner to have reported on this aspect of the applicant’s injury and he was not cross-examined. [9] In his first report, Dr Moyle concluded that the applicant suffered a very clear onset of a co-morbid depressive illness and a phobic anxiety state, called post traumatic stress disorder arising from the occasion of the assault. In Dr Moyle’s opinion, the applicant had no pre-morbid vulnerability to either condition, which had a clear onset after the assault. The time course over 18 months to that point, was such as to make the illness chronic in Dr Moyle’s opinion. Dr Moyle noted, that, to that point, the applicant had not sought help for his condition. In Dr Moyle’s view, the applicant’s prognosis was likely to be good with treatment. Dr Moyle concluded that: “It is my opinion that there is a direct relationship between the assault and the subsequent behaviour of Mr Carson and the depression and anxiety now suffered by Mr Barrell. I should note that I have included his alcohol dependence as a component of the anxiety state, i.e. self medication. He is at risk of having this state develop a life of his own. He needs urgent detoxication with the substitution of appropriate medication and psychotherapy with co- existent attention to his family suffering, for recovery to occur.” [10] Subsequently to his first interview with Dr Moyle, the applicant had an episode where he consumed too much alcohol and got into a frame of mind where he panicked and could not see a way out of his situation. He took an overdose of both alcohol and paracetamol and was admitted to Tewantin Hospital. He was transferred to Noosa Hospital, where his condition was monitored for two days and he was introduced to the Mental Health Services who referred him to the Community Mental Health Services and he returned home. -- 4 of 10 -- 5 [11] After first seeing Dr Moyle, the applicant sought help. This included taking medication (Avanza), consulting his general practitioner on a regular basis and attending Alcoholics Anonymous meetings. [12] In his second report Dr Moyle noted that the applicant was, if anything, a little better but the improvement had not been such as to cause a change to the past diagnosis. Dr Moyle was of the opinion that there was still significant risk factors for suicide and the applicant needed an increase in the level of treatment which, he ventured, might be funded from an order for compensation. Dr Moyle’s diagnosis, at the time of his second report was as follows: “He continues to have signs of PTSD and depression that are well described in the history he gives to me and demonstrated in my office. While his alcohol consumption was heavy in the past it was used to treat his anxious, worried, mood, but was ineffective in doing so and caused more problems than it resolved. I am pleased to see that the first suggestion has been adhered to and he is now abstinent of alcohol. He needs a combination of education and cognitive behavioural treatment to go with the excellent social support and therapy offered by his GP. He should probably have an increase in Avanza at the present time and it might be worth, if his abnormally depressed thoughts do not improve over a few weeks, to add an anti- psychotic agent to lessen the decline into depressive delusion formation, i.e. still a risk. He should be informed of how to take control and master anxiety, and not avoid situations where anxiety is to be expected. To do this first he needs to be free of panic attacks, and then he needs to learn how to relax, how to control his breathing, and how to stop negative and anxious thoughts. Worries achieve nothing. He then needs to increasingly get himself back into the old lifestyle and that means confronting his worries about how he would react in difficult situations. … I confirm my initial impression that his reaction is in the severe range of impairment, i.e. the 20-35 per cent range”. [13] The details of the effects which the assault and the consequent mental or nervous shock had on the applicant are set in some detail in the reports of Dr Moyle. Having -- 5 of 10 -- 6 had the advantage of hearing the applicant’s evidence and observing the manner in which it was given, I am well satisfied that he continues to suffer the effects of his condition. [14] A number of submissions were advanced on behalf of the respondent to support the contention that the mental or nervous shock resulting from the assault should be assessed as moderate, rather than severe. [15] It was submitted that the sentence imposed upon the respondent (a fine of $1,000 and a 12 month disqualification from holding or obtaining a driver’s licence), indicated that the assault was not a serious one, that it was unreasonable for the applicant to suffer so severely and that he was exaggerating. I do not accept those submissions. While the assault might not have been of the most serious kind, I am not inclined to go behind the sentencing judge’s description of it as “quite a serious assault”. I am not satisfied that the applicant, who was subjected to cross- examination on the hearing of this application, exaggerated his condition either to the court or to Dr Moyle. Further, I see no satisfactory basis for a conclusion that it was unreasonable for the applicant to suffer the mental or nervous shock to the extent which he has. I note Dr Moyle’s evidence to the effect that the applicant had no pre-morbid vulnerability, a good pre-morbid adaption to stress and that the condition had a clear onset after the assault. Further, it does not seem to me to matter much whether another person might have been more robust in absorbing the effects of the assault without suffering the mental or nervous shock which affected the applicant. It was the applicant whom the respondent chose to assault and it is the injuries which the assault caused to the applicant which must be considered. -- 6 of 10 -- 7 [16] Another submission advanced on behalf of the respondent, related to an allegation which had been made during the criminal trial that, in the course of the assault, blood had been spat into the face of the applicant. The sentencing judge did not refer to the spitting in his sentencing remarks. The respondent denied spitting occurred. It was submitted for the respondent that the court could not award compensation for the effects of the spitting. Each party gave evidence in this application of their respective version of events. [17] It probably matters little whether, in the course of the assault, the blood of the respondent came to be on the applicant as a result of spitting or some other way. It is clear that the respondent’s blood did come to be on the applicant in the course of the assault. It led to the applicant undertaking tests to determine whether he had contracted a disease (including AIDS). The results of those tests were not available for some three months during which time the applicant did not have intimate relations with his wife and had no direct contact with her or his children, to the detriment of his marriage and his family life. All of this, together with the fear that he could have been infected by reason of the blood, had effects on the applicant. [18] To the extent that it is relevant to determine the manner in which the blood was transferred to the applicant, I accept his version of events in preference to the respondent. Indeed, I generally accept the evidence of the applicant and, in particular, accept it wherever it conflicts with the evidence of the respondent. Although the spitting incident was not referred to in the remarks of the sentencing judge, I note the applicant had also given evidence of it during the criminal trial and there is nothing in the jury’s verdict or in the sentencing remarks which obliges me to reject his version. -- 7 of 10 -- 8 [19] The respondent also submitted that the applicant’s current condition is not solely attributable to assault. In this respect the respondent refers to three incidents described by Dr Moyle. [20] The first incident is the assault itself which, it is conceded, resulted in injury for which the applicant is entitled to an order for compensation. [21] The second incident relates to the respondent driving to the applicant’s home and behaving in a way the applicant found intimidating. The report of Dr Moyle refers to two such incidents, however the applicant could recall only one. [22] The third incident was when the applicant’s next door neighbour informed him that he was an acquaintance of the respondent and that the respondent had endeavoured to arrange for the applicant to be beaten up. [23] Dr Moyle described the second and third incidents as “perpetuating factors” which not only impaired the resolution of any mental disorder but actually worsened it. [24] I accept the submission for the applicant that the mental or nervous shock which the applicant suffered by reason of the assault made him more susceptible to anxiety from the latter conduct. Indeed, the evidence is that, by reason of his condition, the applicant sought to avoid any contact with the respondent. I also accept however, that the only injury for which the applicant can be compensated in these proceedings is the injury suffered by the applicant caused by the personal offence committed against him and not an injury suffered as a result of subsequent conduct. Nevertheless, I am satisfied that the assault continued to be the primary cause of the -- 8 of 10 -- 9 applicant’s condition albeit that the condition was to some extent worsened by the “perpetuating factors”. [25] In these circumstances I am satisfied that the mental or nervous shock suffered by the applicant and which was caused by the assault is appropriately described as falling within the severe category, but more towards the lower than the upper end of that category. [26] The respondent further contends that the behaviour of the applicant directly or indirectly contributed to the injury and that this should be taken into account pursuant to s 25(7). In particular, it is asserted that the respondent who was described in the sentencing remarks as “enraged” at the time, was in effect, provoked to assault the applicant by reason of the way the applicant had conducted his vehicle shortly before the incident. It was said that I should read the following passage from the sentencing remarks, as indicating that the court accepted that the applicant had at least followed the respondent at a reasonably close distance: “To my mind nothing that he had done, even accepting he blew the horn at you, accepting he flashed his lights at you, if he did and accepting he followed along reasonably closely behind you after you passed him rapidly in or about a roundabout, provided absolutely no justification whatsoever for your behaviour.” [27] It seems to me, that, when the passage is read as a whole, the sentencing judge is not accepting that the applicant behaved as the respondent contends, but is expressing the view that, even if he had, such conduct “provided absolutely no justification whatsoever for your behaviour”. It is unnecessary for me to make any finding as to whether the applicant engaged in such conduct or not, because, in any event, I am entirely in agreement with the conclusion of the sentencing judge that such conduct provided absolutely no justification for the respondent’s behaviour. While I -- 9 of 10 -- 10 appreciate that conduct which falls short of providing a justification for the offence may nevertheless be said to directly or indirectly contribute to the injury, I am not persuaded that any deduction should be made in this case, even if I were to accept the respondent’s version of events. [28] It was also suggested that the applicant failed to take reasonable measures to mitigate his loss by failing to obtain appropriate help prior to seeing Dr Moyle. I am not persuaded that there should be any deduction on this account. In judging his decisions and actions it must be remembered that, at the time, the applicant was suffering from a mental or nervous shock injury of a severe nature. He sought help when that was recommended after his first examination by Dr Moyle. I am not satisfied that the applicant acted unreasonably in the circumstances. [29] I assess compensation for the mental or nervous shock injury caused by the assault at 24% of the scheme maximum and the bruising/laceration at 3% of the scheme maximum. Adding those gives a total of 27% of the scheme maximum which yields an amount of $20,250. [30] I order the respondent pay compensation in the amount of $20,250 to the applicant. -- 10 of 10 --