DAS v NAB

[2010] QSC 234

SUPREME COURT OF QUEENSLAND

CITATION:

DAS v NAB [2010] QSC 234

PARTIES:

DAS
(applicant)

v

NAB
(respondent)

FILE NO/S:

BS 13063 of 2009

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

21 June 2010

DELIVERED AT:

Brisbane

HEARING DATE:

21 June 2010

JUDGE:

Fryberg J

ORDERS:

The respondent pay compensation of $14,500.00 to the applicant because of the injuries inflicted upon the applicant by him on 04/01/2005.

CATCHWORDS:

Criminal law – Procedure – Criminal injuries compensation – Queensland – Evidence and procedure – Evidence – Evidence of injury – Weight to be given to secondary evidence depends on verification by the applicant

Criminal Offence Victims Act 1995 (Qld)

COUNSEL:

Y Chekirova for the applicant
The respondent appeared on his own behalf

SOLICITORS:

Campbell & White Lawyers for the applicant
The respondent appeared on his own behalf

HIS HONOUR:   The application before the Court is for
compensation pursuant to the Criminal Offence Victims Act.
The application was filed in November 2009 before the repeal
of that Act.

The respondent was convicted in the Supreme Court on the 21st
of November 2006 of a number of counts which included or which
comprised, in relation to the applicant, wounding with intent
to disfigure and, in relation to the applicant's wife, a
number of offences of violence and property damage.

The circumstances were that the respondent coached one of the
children of the applicant at football and in the course of so
doing, formed a relationship with the applicant's wife.  She
separated from the applicant and continued the relationship
for some four months with the respondent.  Thereafter, she
reconciled with the applicant and returned to their home.  She
seems to have maintained some friendship with the respondent
to the knowledge of the applicant.

Over a period of time, the offences involving applicant's wife
occurred and events culminated on the 4th of January 2005.
She went to the respondent's house on that day, in the
afternoon.  After phone calls from her husband, an altercation
occurred between her and the respondent and she tried to
leave.  She was then subjected to various forms of violence
but went home and subsequently, her husband took her to the
hospital.  After their return, in the small hours of the
morning, the respondent went to their home, broke in, breaking
a glass window, and continued his argument with the
applicant's wife.  He demanded that she go with him and she
tried to stall knowing the police had been called.  He armed
himself with a piece of glass and threatened to kill the
applicant.  He went into the room where the applicant was with
the two young children, waving the piece of glass in a
slashing motion from side to side.  He punched the applicant a
number of times and cut him on the arm, the chest, the neck
and the nose with the glass.

The applicant sustained a 1 centimetre cut to the nose, a 2
centimetre cut to the left chest, a 3 centimetre abrasion on
the left neck, a 2 to 3 centimetre bruise on the right upper
arm and a 1 centimetre incised wound on that arm.  It may be
inferred that the whole experience was terrifying.

The applicant has deposed that, since the incident, he has
become hypervigilant.  He is unable to sleep past 4.30 a.m.
and he wakes with a start.  He regularly has nightmares about
the incident and wakes every two hours and checks the doors to
make sure they are locked.  He has difficulty trusting people
and does not give his address or phone number out.

However, although the incident occurred in January 2005, and
although he was referred to a psychologist for treatment, he
attended the psychologist only twice and ceased treatment on
the basis that it was not achieving anything.  He was
prescribed antidepressants by his general practitioner but

refused to take them.  His marriage has been difficult since
these events.

In a Victim Impact Statement he says that his wife's
personality had changed a lot and that they lived very
separate lives.  She was, he said, a complete bitch to live
with.  He said he had panic attacks when he saw a Toyota, the
type of car driven by the respondent.  He has been left with
minor scarring.

The applicant was examined by Mr Hatzipetrou for forensic
purposes only.  A report prepared by that psychologist found
that the applicant had a range of items within a diagnostic
scale of 49 items for post-traumatic stress disorder.
However, that measure is not designed to replace a clinical
diagnosis.  There are six diagnostic criteria which must be
met for such a diagnosis and not all were met.  The report
does not set out clearly what the six diagnostic criteria are
but records that the symptoms experienced by the applicant
included having upsetting thoughts or images about the event
that came into his head when he didn't want them to, having
bad dreams and nightmares about the event and feeling
emotionally upset when reminded of the event.  Regrettably,
the applicant's affidavit does not verify the existence of
these matters apart from the nightmares.

The report also records that DAS has attempted to avoid
these symptoms and that he did meet criteria for avoidance.
That was said to be an endorsement by the applicant of trying
not to think about, talk about or have feelings about the
event and trying to avoid activities, people and places that
reminded him of the event.  Again, there is very little
evidence to support the existence of those alleged symptoms.

On the basis of what was told to him, Mr Hatzipetrou diagnosed
post-traumatic stress disorder of moderate severity.  He found
that result largely consistent with the clinical presentation.
He recorded that the applicant was evasive and abrupt in his
responses during the initial section of the interview and,
elsewhere, that the applicant was guarded and cautious during
the interview.  He concluded that the applicant had presented
with a cluster of symptoms consistent with post-traumatic
stress disorder and secondary depression.  The intensity of
the symptoms appeared to have diminished over time.  The
severity and frequency of the trauma symptoms diminished over
the five years since the event.

The current presentation, as it was made to the psychologist,
indicated ongoing feelings of traumatisation, violation of
dignity and personal integrity.  Further treatment was
recommended.

The applicant claims compensation under three items in the
schedule to the Act.  Item number 1, bruising and laceration,
minor to moderate, where it is submitted an award of 3 percent
of the limit should be made.  I accept that claim and an
amount of $2,250 for it is appropriate.

There is also a claim for facial disfigurement or bodily
scarring, minor to moderate.  The range there is 2 to 10
percent and the submission is for 3 percent.  Again, $2,250
is, in my judgment, an appropriate amount to award under that
heading.

The submission for mental or nervous shock is that it be rated
severe and at 25 percent.  Under the Act such shock is
categorised as minor, moderate or severe, minor being 2 to 10
percent; moderate, 10 to 20 percent and severe 20 to 34
percent.  I cannot accept this submission.  I am not satisfied
that any post-traumatic stress disorder suffered by the
applicant was greater than minor.

The applicant has not verified the facts on which much of the
psychologist's report is based.  The reception of evidence and
the weight to be given to evidence in expert reports is
completely dependent upon verification of the facts which are
assumed by the expert.  For the applicant, Ms Chekirova,
submitted that there was no need for the applicant to testify
to facts which he told to the psychologist.  The psychologist,
she submitted, was a person experienced in weighing things
told to him.  I reject that submission.  The task of awarding
compensation is one imposed upon the Court by the relevant
legislation.  It is not the task of the psychologist nor, in
fairness, did Dr Hatzipetrou purport to be doing so.

By a small margin I am persuaded that the applicant did suffer
post-traumatic stress disorder.  The evidence is fairly vague
but it is, I think, just sufficient to reach that conclusion.
The applicant's unexplained failure to seek any treatment, his
rejection of the treatment for depression offered to him and
of the psychological referral which was given to him, and the
time which has elapsed since the injuries lead me to the
conclusion that the disorder as suffered necessarily was
minor.  I mean by minor, minor in the sense of item 31 in the
schedule to the Act.  I do not mean by that to trivialise the
injury.  I have no doubt that the events of that day must have
been terrifying.

On the material before me, I therefore make an award of
$14,500.  I order compensation in that sum.

Before I pronounce the formal order, I should say that no
question of admissibility of evidence arose in the present
application.  It is a matter of the weight which should be
given to the evidence which is placed before me.  When the
applicant could verify, but does not verify, something which
is so plainly within his own knowledge, it gives little
weight, in my view, to the material.

The formal order of the Court will be that the respondent,
NAB, pay compensation of $14,500 to the applicant because of the injury inflicted upon the applicant by him on the 4th of January 2005.

-----