Callus v Fietchner

[2005] QDC 292

DISTRICT COURT OF QUEENSLAND

CITATION:	Callus v Fietchner [2005] QDC 292
PARTIES:	ALANA ANN CALLUS (Applicant) v IRWIN GLEN FIETCHNER (Respondent)
FILE NO/S:	1966/05
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING
COURT:	District Court
DELIVERED ON:	6th of October 2005
DELIVERED AT:	Brisbane
HEARING DATE:	28th of September 2005
JUDGE:	FORDE DCJ
ORDER:	It is ordered that the respondent do pay to the applicant the sum of $9,000.00 by way of criminal compensation pursuant to the Criminal Offence Victims Act for offences to which the respondent pleaded guilty on the 4 May 2004.
CATCHWORDS:	CRIMINAL COMPENSATION – PSYCHIATRIC EFFECT – AGGRAVATION OF CONDITION – Expert witnesses – Post traumatic stress disorder – method of assessment
Criminal Offence Victims Act 1995 (Qld) s24 Dooley v Ward [2000] QCA 493 Ferguson v Kazakoff [2001] 2 QD R 320 at 324 KLW v ACH [2001] QDC 306 SAM v SAM [2001] QCA 12 LMW v Nicholls (2004) QDC PLAINT 1660/03
COUNSEL:	Mr A J Kimmins for the Applicant Mr C Callaghan Solicitor for the Respondent
SOLICITORS:	Ryan & Bosscher Lawyers Callaghan Lawyers

Introduction

1. This is an application for criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995. The applicant, Alana Ann Callus, was subjected to common assault and deprivation of liberty. The respondent, Irwin Glen Fiechtner, pleaded guilty to both charges on 4 May 2004. The offences occurred on 28 September 2003. The applicant was born on 2 September 1953 and is now 51 years of age.

2. The respondent was known to the applicant. A schedule of facts was tendered at trial and on this hearing. The applicant has been invited by a Mrs. McNamara to have lunch with her and two other persons one of whom was the respondent’s nephew and his wife. The respondent has abused the applicant on the phone the night before and Mrs. McNamara was going to get a protection order against him. It seems that the respondent and Mrs. McNamara were involved in a property settlement dispute and that the applicant had refused to give evidence in favour of the respondent.

3. The respondent got annoyed about this suggestion of a protection order. He got a gun. Mrs. McNamara heard the gun click twice. The respondent chased Mrs. McNamara and threatened to kill her. Mrs. McNamara ran into the study and locked the door. The respondent then turned his attention to the applicant, pointed the gun at her and threatened to kill her. She observed him trying to put a small bronze bullet into the breach. She ran to the study as well. Whilst both ladies were in the study, the respondent continued his harassment for what felt like “a couple of hours”.[1] The harassment included kicking the door. Police were contacted from inside the study by telephone. The ladies believed that the gun was loaded. The bullet was in fact the firing mechanism for a nail gun. The applicant would not have appreciated the technical aspect at the time and the fact that the gun could not be fired. I am satisfied that the conduct of the applicant did not contributed in any material way to any condition from which she now suffers as a result of the said offences.

   [1] Statement of the applicant exhibit A to her affidavit filed 1 June 2005.

The Applicant’s evidence

1. The applicant’s evidence is as follows[2]:

   [2] Affidavit filed 1 June 2005.

   “ 10. I am in receipt of a Disability Pension. I was placed on this pension
   because I have suffered panic attacks and depression since the commission
   of these offences.
   11. Prior to that I was working part-time for Blue Care as a nurse and I had
   been in their employment for approximately eight (8) years. I have worked
   as a Nurse for my entire working life.
   12. The panic attacks were simply too severe for me to be able to continue
   working and holding people’s lives in my hands. I was not willing to risk
   patients if I had a panic attack whilst they were in my care.
   13. In relation to these panic attacks, I did not suffer from them prior to the
   offences taking place. I found that they would just come on all at once and
   fear overcame me and I couldn’t control it. I would get distressed and find
   it hard to breathe, my heart was racing and I felt like it was never going to
   go away.
   14. As a result of these panic attacks I attended upon my General
   Practitioner, Dr Paul Mercer, and he placed me on lithium which I take
   every day, twice a day. I also take other medication which assists.
   15. The medication that I have takes the panic attacks away however it
   makes me very drowsy. I have also been taking sleeping tablets at night
   since the commission of this offence as I have simply been unable to sleep.
   16. Since the commission of these offences I no longer go out and socialise
   with my friends as I used to. When I go out now it is only if it is a necessity
   and I get what I want and then go straight home. Everything is an effort for
   me. Even seeing my doctor takes a lot of courage for me and I often cannot
   make it out of the house. I am hoping that this will eventually reduce in its
   severity and I will find it easier to go out in public.
   17. I used to visit my friends often and travel out to places witht hem
   however now my friends come and visit me. I do not feel safe going
   outside of the house and when I do venture out it tends to bring on panic
   attacks so it is a lot easier for them just to simply come to me.

   18. Whenever I go out I always have a friend or someone with me just in
   case I suffer from a panic attack. I am petrified of being by myself and this
   overcoming me.
   19. Given that we reside in the same area I am also worried that I may see
   the Respondent in the area and that would cause me extreme distress and
   concern for my safety.
   20. Since the commission of these offences I find that I cannot sleep unless
   I have a sleeping tablet. Initially I was having nightmares however, with
   the medication I find that these are reducing in their severity.
   21. These offences have really changed my entire life. I am no longer even
   confident driving my vehicle due to the medication I take and the
   drowsiness it causes me. Prior to the commission of these offences, I was a
   confident and social person.”

2. The applicant gave details of her life prior to these incidents to Mr. Stoker, the psychologist.

Psychiatric effect

1. The applicant claims mental and nervous shock. The maximum able to be claimed is some 34% of the amount of $75,000.00. That sum is reserved for the more serious cases.[3] The applicant had pre-existing problems. It is clear from her statement and the medical evidence that the applicant has suffered from panic attacks since this incident. She has been prescribed Efexor for that condition which did not exist prior to the incident. Her general practitioner also prescribed lithium.

   [3] Dooley v Ward [2000] QCA 493.

2. In his written report of 4 August 2004[4], the psychologist, Mr. Stoker, states :

   [4] Exhibited to Mr. Stoker’s affidavit.

   “It is my opinion she is suffering from a Posttraumatic Stress Disorder
   (Diagnostic & Statistical Manual of Mental Disorders – American

   Psychiatric Association [DSM-IV]) as a result of the index incident.

   She is also suffering from a Panic Disorder with Agoraphobia (DSM-IV). her life, entailing infidelity by her husband, abuse as a child and serious medical problems (including suffering depression pre-morbidly).

   …

   However, it is my opinion the index accident has had a significant impact and her percentage psychological disability is in the lower-level of the severe range”.

   on this woman’s life.
   …

3. It is open to find, and I so do, that the subject offences have aggravated a pre- existing condition and further caused panic attacks. This condition by itself would probably attract compensation. In fact there is a diagnosis of post traumatic stress disorder for which she is entitled to be compensated.[5] In oral evidence, Mr. Stoker attempted to distinguish the effects of the subject offences from the pre-existing condition. If this cannot be done, the applicant is entitled to be compensated for any injury which has materially contributed to her condition.[6] Where there is credible evidence of the extent of the aggravation, the applicant is limited to an assessment for that aggravation.

   [5] Ferguson v Kazakoff [2001] 2 QD R 320 at 324-5.

   [6] See LMW v Nicholls (2004) QDC 1660/03 para. 15; SAM v SAM [2001] QCA 12

Oral Evidence of Psychiatrist

1. Mr. Stoker was cross examined on his report. The cross examination showed that he was confused between the usual percentage disability which medical practitioners attribute to an injury or psychiatric state and the schedule provided for under the Criminal Offence Victims Act[7]:

   [7] Transcript pp.13-14.

   “All right. She also sought counselling, obviously, as a result of this more suffered prior to the incident contributed to a moderate degree to her ultimate symptoms; is that right? --Yes, that’s correct.

   recent attack by her father in November pf 2002? -- Well they said that she
   was – I don’t know if she actually said – she didn’t report to me she turned
   t counselling. I think that report said she was going to get counselling.
   Whether she got it or (sic) not, I’m not sure.

   It would be fair to say that the abuse of her father, sexual and violent physical abuse, even in more recent times, contributed to a very significant degree, to her current symptoms? – That’s correct.

   And, it’s fair to say that the index incident contributed to about an equal degree as what her father – or what the abuse of her – meted out by her father has contributed? – Well, it’s – that is a very difficult question

   actually, because, you know, she was at the end of a gun that’s about to be
   loaded, and you think your life is about to expire. I think there is a
   quantum difference between chronic abuse and that sort of situation. I
   think she had some post traumatic stress prior to that, but I think the pain
   episodes and the agrophobia only developed after that incident. And I
   think the situation she was in certainly contributed significantly. Now I
   can’t say to what degree, but I think, significant degree on her presentation
   at the interview.

   All right. Well, you come up, finally with an opinion that she suffered a severe degree of mental and nervous shock. How do you arrive at that? - Well, you arrive at that through the Psychological Society’s way of looking

   at assessment of psychological impairment, which looks at global
   assessment of the things that she reported post incident. And one of the
   things that she reported post incident, and was a significant difference, was
   the fact that she found it difficult to leave the house.

   And, what scale do you adopt to come up with this severe. Is there -----? – Yeah, there’s a scale of the Criminal Compensation Act, which says, severe is 20 to 32 percent. I came up on the assessment by the psychologist’s

   recommendation of impairment as between 20 and 23.
   …
   Mr. Stoker, do you say that’s 20 and 23 per cent of – between 20 and 23
   per cent of what? -- Of her psychological impairment, is considered it to
   by the index incident.
   I see. So----? ---- But based, mainly on the fact that now she can’t leave
   the house---
   Yes?----regularly.
   Okay. So, what you’re saying is that, taking her psychological impairment
   as a whole-----?----Yes.
   -----between 20 and 23 percent of that whole psychological impairment,
   you can relate to the index incident; is that right -- That’s correct.

2. The whole psychological impairment cannot be directly related to the schedule under the Act e.g. 100%. What has to occur is that the extent of the aggravation has to be given a percentage. Then, the court has to assess where it fits in under the schedule eg. 1% to 34%. In fact in re-examination, Mr. Stoker agreed with Mr. Kimmins that 20% of the applicant’s nervous shock component complaint was as a result of the index incident.

3. In a case of KLW v ACH[8], his honour Judge Robertson made the following comment:

   “In asking a psychiatrist or psychologist to express an opinion in relation to a particular patient by reference to the schedule, is to misconceive what the scheme of the Act is intended to achieve…

   Expert witnesses should confine their opinions to diagnostic assessments acceptable within their fields of expertise, and not attempt to give opinions by reference to Schedule 1”.

   [8] [2001] QDC 306.

4. I agree with His Honours observations. The attempt to relate the extent of aggravation to the schedule in the present case has not been helpful. In fact on closer examination it appears that it was a percentage of the total disability. Having considered the matter, I would allow a 12% assessment of the Schedule viz. $9,000.00. This is approximately half of the moderate to severe range in the Schedule. As the applicant is to be compensated for the aggravation of her condition as identified by Mr. Stoker, it cannot be said that her severe condition is in a causal or legal sense totally related to the subject offences. The bases of the assessment were her statements to Mr. Stoker as referred to above and his opinion of the extent to which the index incident contributed to her over all psychiatric state.

Order

It is ordered that the respondent do pay to the applicant the sum of $9,000.00

by way of criminal compensation pursuant to the Criminal Offence Victims

Act for offences to which the respondent pleaded guilty on the 4 May 2004.