Garner v Dale
[2006] QDC 360
•11 October 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
Garner v Dale [2006] QDC 360
PARTIES:
ADRIAN GARNER
(Applicant)
v
BRETT MICHAEL DALE
(Respondent)FILE NO/S:
D35 of 2006
DIVISION:
Civil Jurisdiction
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
District Court, Beenleigh
DELIVERED ON:
11 October 2006
DELIVERED AT:
Beenleigh
HEARING DATE:
15 August 2006
JUDGE:
Tutt DCJ
ORDER:
The respondent pay to the applicant the sum of $23,250.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 18 May 2005.
CATCHWORDS:
Criminal compensation – assault occasioning bodily harm whilst armed – bruising – injury to right index finger – fracture and loss of use of finger – back injury – mental or nervous shock.
Criminal Offence Victims Act 1995 ss. 24, 25(6) and (7) and 31.
Ferguson v Kazakoff [2000] QSC 156.
COUNSEL:
Mr L R Smith for the applicant.
SOLICITORS:
Trilby Misso Lawyers for the applicant.
No appearance for the respondent.
Introduction
The applicant, Adrian Garner, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged bodily injury he sustained arising out of the criminal conduct of the respondent, Brett Michael Dale, who was convicted by the District Court at Beenleigh on 18 May 2005 for among other things the offence of assault occasioning bodily harm whilst armed to the applicant on 13 October 2004 at Regents Park, Queensland.
In accordance with the order for substituted service made by this court on 12 May 2006 the applicant’s solicitors caused an advertisement to appear in The Courier Mail newspaper on 23 May 2006 to perfect service on the respondent of the material before the court.[1] Despite the publication of that advertisement there was no appearance by or on behalf of the respondent at the hearing.
[1] See affidavit of Peter Rodney Hall sworn 8 August 2006 and filed on 10 August 2006.
The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-
(a) the affidavit with exhibit of the applicant, sworn 23 February 2006 and filed in this court on 24 March 2006;
(b) the affidavit with exhibits of Peter Rodney Hall, solicitor, sworn 22 February 2006 and filed in this court on 24 March 2006;
(c) the affidavit with exhibit of Scott Campbell, neurosurgeon, sworn 21 December 2005 and filed in this court on 24 March 2006;
(d) the affidavit with exhibit of Andrew Byth, psychiatrist, sworn 22 December 2005 and filed in this court on 24 March 2006;
(e) the affidavit with exhibit of Vincent Cheng, medical practitioner, sworn 23 January 2006 and filed in this court on 24 March 2006;
(f) the affidavit with exhibit of Peter Millroy, orthopaedic surgeon, sworn 5 January 2006 and filed in this court on 24 March 2006; and
(g) the further affidavit of Peter Rodney Hall sworn 8 August 2006 and filed in this court on 10 August 2006.
Facts
The respondent attacked the applicant in the early hours of 13 October 2004 when the applicant was asleep in his bed and was struck a number of times with a baseball bat on numerous parts of his body including his back, knees, forearms and hands. The applicant was otherwise threatened by the respondent with a knife but finally escaped the assault when he ran out of the house and called for assistance and the police. The respondent then decamped from the property and was subsequently arrested on a number of charges.
Injuries
The applicant claims compensation for the bodily injuries suffered by him in the assault and he describes those injuries as follows:
(a) “Since the assault I have had difficult sleeping and often wake from bad dreams and flashbacks of the assault;
(b) I have become anxious and nervous especially when I see silver cars similar to that of the respondent;
(c) I constantly fear being attacked again and am reluctant to go out at night;
(d) For a long period following the accident I lost all interest in my hobby of carrying out mechanical work on racing cars;
(e) I feel depressed, I have a lack of motivation and a lack of concentration.”[2]
The applicant also adopts the contents of the medical reports from the various practitioners whom he consulted and who have provided reports setting out the applicant’s complaints to them and the diagnoses they have formed.
[2] See paragraph 6 of the applicant’s affidavit sworn 23 February 2006.
The applicant was examined by the various medical practitioners referred to in paragraph [3] hereof who have provided reports in respect of their examinations and diagnoses of the applicant’s injuries.
The applicant was examined firstly by Vincent Cheng, medical practitioner, on 14 October 2004 (that is, the day following the attack) and Dr Cheng’s provisional diagnosis was described as follows:
“…multiple soft tissue injuries to multiple parts of his body. Mr Garner had tenderness and obvious bruise and swelling to his right hand, index and middle fingers. X-rays showed no bony injuries. Mr Garner also has tenderness to T11-L1 of his spine. He had good range of movements. Mr Garner had swelling and bruises left knee especially to his distal femur, LCL and lateral epicondyle. He had good range of movements. He also had tenderness at lateral epicondyle to his right knee.”[3]
[3] See at page 1 of report exhibited to the affidavit of Vincent Cheng.
Dr Cheng examined the applicant on two further occasions on 18 November 2004 and 30 December 2004 respectively.
Dr Campbell examined the applicant on 5 September 2005 (that is, approximately 11 months post-incident) and noted that the applicant’s complaints at that time relevant to his specialty were “1. Lower back pain; 2. Right index finger pain/stiffness”. Dr Campbell also confirmed that:
“…following the assault Mr Garner had two days off work. He then returned to normal duties. Mr Garner is currently performing normal duties at work. He notes aggravation of the back pain and right index finger pain with holding tools, doing up nuts and bolts, prolonged standing/walking and awkward postures. He avoids repetitive lifting and bending at work. He is reliant on co-workers to perform the heavier manual tasks, which causes decreased efficiency.”[4]
[4] See page 3 of report exhibited to affidavit of Scott Campbell.
Dr Campbell summarises his opinion in the following manner:
“The assault resulted in soft tissue musculo-ligamentous injuries to the lumbar spine and right index finger. Despite appropriate treatment the injuries went on to become chronic and are responsible for the current symptoms of lower back pain, radicular pain and right index finger pain/stiffness. The injuries can now be classified as stable and stationary with maximal improvement having already taken place.”[5]
In respect of the applicant’s lumbar spine injury Dr Campbell states:
“Mr Garner is suffering a 6% whole person impairment. This impairment is likely to be permanent.”
[5] Ibid at page 4.
The orthopaedic surgeon Dr Millroy examined the applicant with a view to providing a report in respect of the applicant’s “right index finger”. He describes the applicant’s complaints to him on examination on 22 November 2005 (13 months post-incident) as follows:
“He says the right index finger distal half on the flexor aspect is continuously numb. This came on a couple of days after the injury. There is no improvement. There is no present swelling of the digit. He still notices slight restriction of movement of the digit. He says he has difficulty doing up nits and bolts and using air tools because it is difficult to be accurate with the pressure using his index finger.”[6]
[6] See page 1 of the report exhibited to the affidavit of Peter Millroy.
Dr Millroy’s examination revealed as follows:
“The right index finger is not swollen. It is normal shape. The pulp of the right index finger is obviously well used. It has the same work stain patterns as the other digits. There may be decreased sweating of the pulp compared to the other digits but I am not certain of this. There is slight restriction of full extension and flexion of the right index finger. The distal interphalangeal joint flexes to 55°, the left to 70°. Extension of the proximal interphalangeal joint lacks 10°. There has been a previous laceration of the distal pulp. There is a small scar present. The finger nail is normal. Sensation to light touch is better on the radial half of the pulp than the ulna side. All other digits have normal function. The wrist has full range of movement.”[7]
Dr Millroy describes the applicant’s right index finger injury in the following terms:
“The injury of the right index finger sustained on the 13th October 2004 was a contusion and a probable small fracture of the dorsal corner of the base of the distal phalanx. Mr Garner says there was a small laceration of the distal pulp with some splitting of the distal nail but the records do not confirm this.”[8]
[7] Ibid, at page 2.
[8] Ibid.
Dr Millroy summarises the applicant’s disability in respect of his right index finger in the following terms:
“…for slight restriction of movement – this impairment measures 2% of the upper extremity … for partial sensory loss of the right index finger which measures 2% of the upper extremity.
There is a total permanent impairment of 4% of the upper extremity which is equivalent to 2% of the whole person”.[9]
[9] Ibid, at page 3.
Dr Byth’s report is relevant to the applicant’s “mental or nervous shock” claim and his diagnosis is in the following terms:
“His diagnosis under DSM-IV is of Posttraumatic Stress Disorder (PTSD). He displays features of this condition including his exposure to a distressing and life-threatening event, followed by persistent reliving experiences (nightmares and flashback memories). He also described some triggering of reliving experiences by related stimuli, and some avoidance of related stimuli. His other features of PTSD include emotional numbing, some social withdrawal, anxiety and depression, and hyperarousal, as are described in DSM-IV. His PTSD symptoms have been of mild severity. They have required referral to a specialist psychiatrist, support from his GP, and a trial of an antidepressant.”[10]
Dr Byth describes the applicant’s symptoms in the following terms:
“His PTSD symptoms have been of mild severity. They have caused clinically significant impairment of social and occupational functioning, as is required for diagnoses under DSM-IV.”[11]
[10] See report exhibited to the affidavit of Dr Andrew Byth at page 6.
[11] Ibid, at page 7.
Dr Byth finally summarises the applicant’s condition as follows:
“As a result of the assault in 2004, Adrian Garner is suffering from a permanent psychiatric impairment of 10-20% (Class 2, mild impairment), as described in the AMA tables.”[12]
[12] Ibid, at page 8.
Mental or Nervous Shock
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 him.
Categories of Injuries
I find that the applicant’s injuries arising out of the assault on him by the respondent fall under the following categories of injuries in Schedule 1 of the Act, namely:
(a) Item 1 – Bruising/laceration (minor/moderate) (percentage of scheme maximum 1% - 3%) on the basis of Dr Cheng’s report referred to in paragraph [7] hereof;
(b) Item 17 – Fracture/Loss of use of finger (percentage of scheme maximum 2% - 8%) on the basis of Dr Millroy’s report referred to in paragraphs [11] to [13] hereof where he describes the applicant’s “total permanent impairment” at “4% of the upper extremity”;
(c) Item 22 – Back injury (moderate) (percentage of scheme maximum 5% - 10%) on the basis of Dr Campbell’s report who describes the plaintiff as “…suffering a 6% whole person impairment”; and
(d) Item 32 – Mental or nervous shock (moderate) (percentage of scheme maximum 10% - 20%) on the basis of Dr Byth’s report who describes the applicant’s symptoms “of mild severity”.
It should be noted also that the applicant had only two days off work as a result of the index assault; “then returned to normal duties”[13] and continued to perform his normal work duties albeit with some difficulty in respect of certain tasks.
[13] See page 3 of report exhibited to affidavit of Scott Campbell.
Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on 13 October 2004 as follows:
| (a) In respect of Item 1, the sum of $2,250.00 representing 3% of the scheme maximum; | $2,250.00 |
| (b) In respect of Item 17, the sum of $2,250.00 representing 3% of the scheme maximum; | $2,250.00 |
| (c) In respect of Item 22, the sum of $7,500.00 representing 10% of the scheme maximum; | $7,500.00 |
| (d) In respect of Item 32, the sum of $11,250.00 representing 15% of the scheme maximum; | $11,250.00 |
| TOTAL | $23,250.00 |
I therefore order that the respondent pay to the applicant the sum of $23,250.00 by way of compensation for the bodily injuries he sustained.
In accordance with section 31 of the Act, I make no order as to costs.
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