Devaraj v Mathutanayagam
[2007] QDC 116
•25 June 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Devaraj v Mathutanayagam [2007] QDC 116
PARTIES:
ARUNA DEVARAJ
(Applicant)
V
SURENDARAN MATHUTANAYAGAM
(AKA ISAAC SURENDARAN)
(Respondent)
FILE NO/S:
261/07
DIVISION:
Civil jurisdiction
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
25 June 2007
DELIVERED AT:
Brisbane
HEARING DATE:
22 May 2007
JUDGE:
Tutt DCJ
ORDER:
The respondent pay the applicant the sum of $24,000.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Brisbane on 15 June 2004.
CATCHWORDS:
CRIMINAL COMPENSATION – where applicant assaulted on a number of occasions – where applicant suffered burst eardrum, bruising and fractured finger – where applicant diagnosed with post-traumatic stress disorder – whether single or multiple incident.
Criminal Offence Victims Act 1995 ss 24, 26 (1).
Ferguson v Kazakoff [2000] QSC 156.
COUNSEL:
Mr C. Reid for the applicant.
No appearance for the respondent.
SOLICITORS:
Gabriel Ruddy & Garrett for the applicant.
Introduction:
The applicant, Aruna Devaraj claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury she sustained arising out of the criminal conduct of the respondent, Surendaran Mathutanayagam, who was convicted by the District Court at Brisbane on 15 June 2004 of a number of offences including two counts of common assault; one count of burglary with circumstances of aggravation; one count of assault occasioning bodily harm and one count of stealing from the person.
In accordance with the order for substituted service made by this court[1] on 30 March 2007, the applicant’s solicitors caused an advertisement to appear in the Public Notices section of The Australian newspaper on 19 April 2007 to effect service on the respondent of the material before the court. Despite that publication there was no appearance by or on behalf of the respondent at the hearing.
[1] See affidavit of Christopher Michael O’Connor filed by leave on 21 May 2007.
The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-
(a) the affidavits with exhibits of the applicant sworn 18 January 2007 and 29 March 2007 and filed in this court on 29 January 2007 and 30 March 2007 respectively;
(b) the affidavit with exhibit of Dr Barbara McGuire, Psychiatrist, sworn 22 January 2007 and filed in this court on 29 January 2007;
(c) the affidavit with exhibit of Dr Greg Apel, Psychiatrist, sworn 23 January 2007 and filed in this court on 29 January 2007; and
(d) the affidavit of substituted service with exhibit of Christopher Michael O’Connor, Articled Clerk, sworn 21 May 2007 and filed by leave in this court on 21 May 2007.
Facts:
The respondent, who at the relevant time was the applicant’s husband, assaulted the applicant on a number of occasions as set out in the material before the court by striking her “… around the face and ears with his open hands and closed fists and otherwise attacking her. The applicant suffered pain; her hearing was affected for more than six months; she became anxious, upset and could not sleep.[2]
[2] Exhibits AD-3 and AD-8 to the applicant’s affidavit filed 29 January 2007.
Physical injuries:
The applicant claims compensation for both physical and psychological injuries suffered by her arising out of the respondent’s assaults upon her. The applicant’s physical injuries are as follows:
(a) burst eardrums;
(b) bruising to neck and face; and
(c) fracture to little finger on left hand.[3]
[3] Exhibit AD-3 to the applicant’s affidavit filed 29 January 2007
Mental or nervous shock:
The applicant also claims compensation for a psychological injury and was assessed in this respect by psychiatrists Drs McGuire and Apel respectively.[4]
[4] Affidavits with exhibits of Barbara McGuire and Greg Apel filed 29 January 2007.
The applicant was interviewed by Dr McGuire “on 27 February 2006” (six years post incident) who states that the applicant’s “… account indicates that she suffered post‑traumatic stress disorder as a result of the offences for which Mr Surendaran was convicted. This is a condition characterised by intrusive thoughts of the trauma, limitation of lifestyle, anxieties, security fears, etc. By her account, the condition lasted about 18 months and has settled considerably over the last six months. She suffered it to a moderate degree.”[5]
[5] Ibid, page 4.
Dr McGuire further states that the applicant:
· “Was subjected, she said, to intense violence at the time of the offences and thought she was going to be killed.
· Afterwards she was very tremulous and anxious after being hit around the head she could not hear.
· She is overprotective of her children and has a limited social life.
· She is, however, optimistic in her outlook on life in general.
· She has had counselling which was arranged through her work. She saw a counsellor monthly for a year and was supported by her throughout the court case. She has occasional contact.”[6]
[6] Ibid page 5.
The applicant was further interviewed by Dr Apel “on 28 April 2006 and 1 May 2006” (over six years post incident) and Dr Apel describes the applicant’s “current symptoms” in the following terms:[7]
[7] Pages 4-5 of exhibit “GAI” to Dr Apel’s affidavit.
“Ms Devaraj relates she suffers chronic headache. It is unclear if this is a migranous or tension headache. It is difficult to control.
She relates her sleep is very poor and she would only gain one to two hours per night since 2000. This has increased up to four to five hours per night over the past twelve months. She related her anxiety is particularly severe at night as that was when Sunny would break into the house and assault her. She related her appetite is patchy and there is little enjoyment of food. She relates she startles excessively if there are noises around the house, with her heart racing and she is unable to settle. She will not go outside the house at night.
She relates there are video cameras and security screens in her home but this does not calm her. She feels her concentration is adequate, and indeed it is very sharp, and she is driven to keep focus. She fears she will not detect an intruder if she lets her vigilance lapse. She is particularly more anxious as her hearing remains impaired, and she is worried that she cannot clearly localise sound around her.
She relates a complete loss of libido and is generally afraid of relationships, or trusting other individuals. She relates being chronically anxious and readily upset and keeps a distance from those around her. Her emotional state is such that she grows more anxious if she is in close physical proximity to people. She relates she suffers recurrent dreams at least weekly, this is of anxious subjects of harm to herself and her children, particularly detailed memories of dreams of the rapes by Mr Mathutanayagam. She grows quite tearful on occasions and will cry periodically.”
Dr Apel diagnosed that the applicant is suffering “post‑traumatic stress disorder, chronic type” and that “The prognosis in this is guarded in view of the duration of the offences, their repeated nature and the circumstance of breach of trust. These are all poor prognostic factors.”[8]
[8] P 6 of Exhibit GA-1 to the affidavit of Dr Apel filed 29 January 2007.
Dr Apel disagrees with Dr McGuire in respect of the latter’s opinion that the applicant’s “… post‑traumatic stress disorder was of moderate severity” and categorises the applicant’s disorder as “… severe on the basis that:
· There was a prolonged duration of threat to not only her own life and security but that of her children as well.
· Her intense belief in the reality of this threat, as such that she had withdrawn Domestic Violence Orders, disavowed matters with Police, and made multiple moves to get away from her ex‑husband Sunny.”[9]
[9] Ibid p 5.
It is now well accepted that to establish a “mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “(an) injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event” as distinct from “… fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraphs [15, [17] and [21] respectively.
Applicant’s contribution:
In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).
I have referred to the circumstances of the incident in paragraph [4] above and I am of the opinion that the applicant’s behaviour at the relevant time did not either directly of indirectly contribute to the injury complained of by her.
Applicant’s submissions:
The applicant submits that she is entitled to compensation for her physical and psychological injuries in the following terms, namely:
“COMPENSATION AMOUNTS
(A)Physical Injuries
(i)
Count 1
Bruising/laceration
(Item 1)
1%
(ii)
Count 4
Bruising/laceration
(Item 1)
2%
(iii)
Counts 5-7
Fracture/loss of use of finger
(Item 17)
4%
Loss of hearing
(Item 35)
10%
Mental Injuries (b)
(i)
Mental or nervous shock
(Item 32/33)
20%
(Dr McGuire says moderate. Dr Apel says severe: 20% is top of moderate; bottom severe.)
The applicant therefore seeks an award of 37%, ie a sum of $27,750.00 by way of compensation.
Single or multiple incident:
The applicant claims compensation under the table for two separate injuries of “Bruising/laceration” in respect of the respondent’s conviction on Counts 1 and 4 respectively on the indictment presented against him. I am satisfied in the circumstances that categorising two separate assaults is justified because of the lapse of time between each assault which therefore constitute two separate assaults causing injury and “should not be…treated as a single injury” within the terms of s 26(1) of the Act.
Findings on categories of injuries:
On the basis of all of the evidence before me I find that the applicant’s injuries fall under the following categories of injury contained in the Compensation Table in Schedule 1 of the Act, namely:
(a) Item 1 – bruising/laceration etc (minor/moderate) – I assess at 1% in respect of Count 1 of the indictment.
(b) Item 1 – bruising/laceration etc (minor/moderate) – I assess at 2% in respect of Count 4 of the indictment.
(c) Item 17 – fracture/loss of use of finger I assess at 4% in respect of Counts 5-7 of the indictment.
(d) Item 35 – loss of hearing (one ear). I assess at 5% based upon the applicant’s own evidence contained in her victim impact statement being Exhibit AD‑8 to her affidavit filed 29 January 2007 where she states: “My hearing was affected for more than six months. This caused me difficulty with driving.” There was no evidence before me that the applicant has suffered any permanent hearing defect.
(e) Items 32/33 – mental or nervous shock (moderate/severe) – I assess at 20% based upon the applicant’s own evidence contained in her affidavit and the reports of Drs McGuire and Apel respectively where there is a divergence of opinion as to the extent of the applicant’s condition under this category of injury from “moderate” to “severe”.
I therefore assess the quantum of the applicant’s compensation for bodily injuries she sustained as a result of the conduct of the respondent as follows:
(a)
In aggregate in respect of Item 1 the sum $2,250 representing 3% of the scheme maximum
$2,250
(b)
In respect of Item 17 the sum of $3,000 representing 4% of the scheme maximum
$3,000
(c)
In respect of Item 35 the sum of $3,750 representing 5% of the scheme maximum
$3,750
(d)
In respect of Items 32/33 the sum of $15,000 representing 20% of the scheme maximum
$15,000
TOTAL
$24,000
I therefore order that the respondent pay to the applicant the sum of $24,000 by way of compensation for the injuries she sustained.
In accordance with s 31 of the Act I make no order as to costs.
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