Edwards v Conrad

[2002] QCA 37

[2002] QCA 37

COURT OF APPEAL

DAVIES JA
McPHERSON JA
WILLIAMS JA

Appeal No 10195 of 2001

VERONICA JANESSA EDWARDS  Appellant

and

FREDDY SIMEON CONRAD  Respondent

BRISBANE

..DATE 19/02/2002

JUDGMENT

DAVIES JA:  Veronica Janessa Edwards seeks leave, as she must, to appeal against an award of compensation made pursuant to former section 663B of the Criminal Code.  The learned primary Judge awarded her $18,000 by way of compensation pursuant to that section for injuries suffered by reason of the commission of an offence of grievous bodily harm committed against her by the respondent on 16 December 1994.  The basis upon which the applicant would appeal against that award, if leave were granted, is that it was manifestly inadequate.

The respondent was convicted in the District Court on
24 February 1995 for doing grievous bodily harm to the applicant on 16 December 1994.  On that day he assaulted her without provocation or warning by striking her on the face, kicking her in the ribs and stabbing her under her arm with a knife which entered her side just under her shoulder.  It entered her lung which caused her great difficulty in breathing and frightened her considerably.  She lost consciousness and was taken to the Cairns Base Hospital where a tube was inserted into her chest to allow her lung to re-expand by draining air out of the chest cavity and by draining blood out of the chest cavity.  She made a good recovery from these physical injuries which, apart from her collapsed lung, consisted only of some bruising and lacerations.  Dr Edwards, a thoracic physician who examined her, did not anticipate any long-term consequences as a result of this injury although it must be said that she does have some scarring as a result of the knife wound.

The applicant claimed in respect of a further injury, namely nervous shock with chronic post-traumatic stress disorder.  The difficulty with assessing the extent to which she suffered this injury is that Mr Ryan, a psychologist who examined her, noted that she had previously been in domestically violent relationships which had destabilised her personality resulting in the development of a borderline personality disorder.  She had been involved in three chronically violent relationships, one of which was continuing at the time of commission of this offence.  Indeed, at the time of this offence she had chronic depression and anxiety which had existed continuously since being assaulted by one of her partners in 1994.  It is quite unclear from the psychologist's report, and that is the only relevant report which was before the learned primary Judge, the extent to which this disorder was exacerbated by the injuries which she suffered in this assault.  Mr Ryan, the psychologist, said no more than that the so-called nervous shock significantly exacerbated her pre-existing condition.  Whether that means more than temporally is quite unclear. 

In the end, no doubt doing the best he could, the learned primary Judge awarded $18,000 compensation.

Before turning to the principles relevant to this application two further matters should be mentioned.  The first is that the respondent to the application was never served.  However, his Honour made an order for substituted service and, assuming that an order for substituted service can be made in respect of applications under repealed section 663B, his Honour was justified in the circumstances put before him in making the order which he did.  And as these are civil proceedings I think that such an order could have been made.

The second point arises from the fact that the application was made on 28 May 2001, more than six years after the commission of the offence. This Court held, in The Queen v. Chong; ex parte Chong [2001] 2 QdR 301, that the Limitation of Actions Act 1974 applied to a claim such as this but that, no point being distinctly taken under that Act, whether by way of pleading or otherwise (the respondent in that case did not appear either) no time bar prevented recovery. His Honour correctly adopted the same approach here.

This legislation required that compensation be assessed in accordance with the scheme in force at the time these injuries were inflicted and in accordance with the prescribed amount at that time (see Chong at 313 to 314).  It also required assessment on the basis analogous to damages for personal injuries but up to the maximum fixed pursuant to the legislative scheme (The Queen v Jones;
ex parte McClintock [1996] 1 QdR 524). The relevant maxima at the time are of no great relevance in the context of these injuries. They were approximately $100,000 in total with a maximum of $20,000 in that sum for nervous shock.
There is nothing which I have said so far, or in my opinion in the reasons of the learned primary Judge, which leads me to think that there was any error in principle or indeed any injustice has ensued from his Honour's judgment.  The physical injury was substantial but the applicant made a complete and, it appears, speedy recovery from it, and his Honour understandably could not have been satisfied that the psychological injury was any more than a temporary exacerbation to a condition of long-standing. 

The amount awarded was not outside the range of a sound discretionary judgment.  In those circumstances the case falls well short of the requirements necessary to be satisfied for a grant of leave.  For those reasons I would refuse the application for leave to appeal.

McPHERSON JA:  I agree.

WILLIAMS JA:  I agree.

DAVIES JA:  The application is refused.  Adjourn the Court.

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