Bretherton v Richardson

[2006] QDC 489

DISTRICT COURT OF QUEENSLAND

CITATION:	Bretherton v Richardson [2006] QDC 489
PARTIES:	GARY ROBERT BRETHERTON

Applicant

V

ROGER IAN RICHARDSON

Respondent

FILE NO/S:	36/06
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING  COURT:	District Court, Beenleigh
DELIVERED ON:	1 December 2006
DELIVERED AT:	District Court, Brisbane
HEARING DATE:
JUDGE:	Nase DCJ
ORDER:	It is ordered that Roger Ian Richardson pay to Gary Robert Bretherton the sum of $3,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995
CATCHWORDS:
COUNSEL:	Mr P Curbishley for the applicant
SOLICITORS:	Compass Legal Solutions for the applicant

1. This is an application for an order for criminal compensation by Gary Robert Bretherton (the applicant). The respondent to the application is Ian Roger Richardson. The respondent has chosen not to appear or to be represented at the hearing of the application. As a consequence, it proceeded in his absence and solely on materials placed before the court by the applicant.

2. On 13 February 2003 the respondent was convicted of a charge of assault occasioning bodily harm by a verdict of a jury. The sentence was a combined prison/probation order: two months imprisonment followed by 12 months probation.

3. The assault occurred on 28 August 2001. The respondent at the time was living in a mobile home located in the backyard of the house next door to the applicant. The assault itself is unexplained except that it took place in the course of ongoing harassment of the applicant by the occupants of this house.

4. The details of the assault are as follows. The applicant was seated in his car about to drive his daughter to school, when the respondent came over to the car and punched him in the face through the half-opened car window. The assault continued outside the car. Both men fell to the ground, with the respondent ending up straddling and punching the applicant about his chest, neck and face repeatedly. The respondent at the time was 29 years of age. The applicant was 49. He is now 54. Throughout the assault the applicant merely acted defensively, not making any effort to strike the respondent.

5. The applicant suffered a number of injuries in the assault. On 28 August 2001 he saw his general practitioner (a Dr Howse). Dr Howse said that he had major abrasions to both knees, abrasions to both hands, abrasions to both elbows, and abrasions on his face, forehead and cheeks. On examination of his body, Dr Howse noted bruising to the left shoulder. At that time he also had lacerations to the mucosal surface of the mouth and a broken upper left canine tooth. When he presented for dental treatment 3 days later (31 August 2001) it was noted he had a grazed forehead and black left eye. The tooth was not fractured but was damaged in the sense that a filling needed to be replaced.

6. I am satisfied the applicant suffered an injury within the meaning of s 20 of the Act, and the offence is a personal offence within the meaning of s 21 of the Act.

7. Under the legislative scheme a court may make a compensation order up to the scheme maximum in accordance with the provisions of the Act. The method of assessment under the legislative scheme involves associating an injury suffered by the applicant with a corresponding item in a compensation table attached to the Act. The maximum awards of compensation are to be reserved for the most serious cases and the awards in other cases are to be scaled according to the relatively seriousness of the particular injury (s 22(4)). In assessing compensation it is important to be mindful of the principle that the compensation which may be awarded under the Act is intended to help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (s 22(3)). Mr Curbishley, who appeared on behalf of the applicant, suggested that 4 per cent of the scheme maximum should be allowed for the bruising and lacerations, and 1 per cent for the damage to his tooth. I agree that an allowance of 3 or 4 per cent for the bruising and lacerations is reasonable. He did need to return to his general practitioner on 29th and 31st August, and 3rd and 5th September 2001 for cleaning and redressing of the lacerations.

8. On balance, I feel that the percentages claimed are reasonable. A total of 5 per cent of the statutory maximum will therefore be allowed for his physical injuries.

9. He also claims for mental or nervous shock. In support of the application, a report from a psychologist (Mr Lynagh) has been placed before the court.

10. At the time of the assault the applicant was in receipt of a disability pension as a result of a back injury. Since 1998 he has apparently needed the support of a walking stick. Back in 1995 he was assaulted and knocked unconscious by two men. Subsequently he was diagnosed as suffering from both a post traumatic stress disorder and a dysthymic disorder by a Dr Freed (psychiatrist). He received a criminal compensation payout for that assault.

11. In interview with Mr Lynagh the applicant related the symptoms which he claims have affected him from time to time since the assault as being:

    • depression

• irritable moods and feelings of anger

• tenseness and nervousness

• occasional stammering

• grinding his teeth day and night

• restless sleep

Of these claims, Mr Lynagh observed in his report:

“As regards his claim, even without supportive evidence, in my view it is entirely reasonable to accept that Mr Bretherton in all probability would have suffered a period of emotional distress and anxiety following the assault, which clearly would have been exacerbated by continuing to reside next door to the perpetrator (or his family).”

1. Mr Lynagh said he thought it was reasonable to conclude the applicant suffered from a mental and nervous shock to a minor or moderate degree for a period of around six or nine months after the assault. It is unclear whether Mr Lynagh considered the applicant developed any particular psychiatric disorder. Mental or nervous shock it must be remembered is a legal, not a medical category.

2. The term “nervous shock” has a long legal history. Thomas JA in Ferguson v Kazakoff (2000) QSC 156 observed that:

   “The term was always used to describe a condition beyond ordinary reaction to trauma. The term ‘shock’ has been used in relation to war neurosis, including conditions such as ‘shellshock’. Both in ordinary usage and in the context of civil nervous shock cases, an abnormal condition or illness seems to have been contemplated. Thus, if nothing more is shown than “fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions, the claimant has not shown that he or she suffered nervous shock. Unless the court is affirmatively satisfied that mental or nervous shock has been suffered, compensation should not be awarded for such reactions.”1

3. In this case it is difficult to treat the emotional or psychological consequences of the applicant as mental or nervous shock. The distress, nervousness, anger and restlessness all appear to be a reasonable human response to the conduct of the respondent. I am not ultimately persuaded that the applicant developed mental or nervous shock in the period following the assault on him. As Mr Lynagh observed in his report, the passage of time from the date of the assault to today does not assist the task of identifying any past mental or nervous shock he may have suffered.

4. Finally, a court is required on these applications to consider whether any conduct on the part of the applicant may have contributed directly or indirectly to the injury suffered by him. In this case there was no relevant conduct on the part of the applicant which should result in a reduction in the award to which he is otherwise entitled.

5. It is ordered that Ian Roger Richardson pay to Gary Robert Bretherton the sum of $3,750 by way of compensation pursuant to the Criminal Offence Victims Act 1995.