Gilbert v Gilbert

[2001] QDC 224

DISTRICT COURT OF QUEENSLAND

CITATION:	Gilbert v Gilbert [2001] 224
PARTIES:	ANTHEA AGNES GILBERT (Applicant) DENESSA ELENE GILBERT (Respondent)
FILE NO/S:	17 of 2001
DIVISION:	Trial
PROCEEDING:	Application for Criminal Compensation
ORIGINATING	Cairns
COURT:
DELIVERED ON:	1 June 2001
DELIVERED AT:	Cairns
HEARING DATE:	21/02/2001
JUDGE:	White DCJ
ORDER:	That the respondent Denessa Elene Gilbert pay the applicant Nina Muriel Gilbert the sum of $37,000 by way of compensation.
CATCHWORDS:
COUNSEL:	Mr A.J. Kimmins for the Applicant
SOLICITORS:	Mr T. Bailey for the Applicant

[1]	The Respondent, Denessa Elene Gilbert, was convicted in the District Court at Cairns on 31 April 2000 of the following offence:-
1. That on the fourteenth day of April 1999 at Kowanyama in the State of Queensland she unlawfully did grievous bodily harm to Nina Muriel Gilbert.

This is an Application by the said Nina Muriel Gilbert for compensation pursuant to s.24 of the Criminal Offence Victims Act 1995.

1. The Applicant was born on 8 March 1964. She was therefore 35 at the time of the commission of the offence. She is now 37 years of age. The Applicant and the Respondent are sisters, who both live with their mother Doris Gilbert in Kowanyama.

2. On the evening of 14 April 1999, the Applicant and the Respondent were in the kitchen of their mother’s house preparing a meal. The Applicant and the respondent argued and the Respondent stabbed the Applicant in the wrist of her left arm. Fortunately, a Police vehicle was patrolling in the area at the time and was “flagged down” by Doris Gilbert. The Applicant was taken to Kowanyama Hospital by the Police Officers. Those are the facts which constitute the offence.

[4] The Applicant was treated at Kowanyama Hospital by Dr Andrew Watson, who
noted the following:-

“She had sustained a deep laceration to the (L) wrist on the ulnar side of the flexor surface, 5cm proximal to the proximal wrists crease. The wound was profusely bleeding from the ulnar artery and 5 minor veins, all of which were severed.

Nina’s ulnar nerve was also severed as was 4, possibly 5 flexor tendons, including flexor carpi ulnarus and flexor carpi radialus. Without surgery to repair the nerve and tendons Nina would have had a severe and permanent loss of function in her left hand. Even with surgery it will be 6 weeks or longer before we learn exactly how much, if any, function and sensation Nina will have lost.

She had lost approximately 1.5 litres of blood prior to arriving here based upon conjunctival pallor, pulse rate 120 and a weak radial pulse (unrecordable brachial blood pressure). Given the brisk bleeding on presentation despite good first aid it is quite possible that untreated Nina would have died from blood loss from this wound.

I tied off the bleeding artery, and five veins here, as well as replacing Nina’s fluid loss.”

1. Once the Applicant’s condition had been stabilised, the Royal Flying Doctor Service evacuated her to the Cairns Base Hospital. Whilst at the Cairns Base Hospital the following was noted:-

   “[t]here was no movement of the wrist, a 6cm deep laceration of the four severed tendons and a severed ulnar artery which had been tied. Examination of the little finger revealed no sensation or movement, the ring finger could be flexed at the distal interphalangeal joint but not at the proximal interphalangeal joint and all other digits had normal sensation.

   Ms Gilbert was admitted to the orthopaedic ward for tendon, nerve and artery repair of the left forearm and was discharged on 19 April 1999 to be followed up by her local doctor.”

2. In her affidavit dated 13 July 1999, the Applicant swears as follows:-

   “2. On Wednesday 14 April I was cooking in the house where I live. I don’t remember much about what had occurred because I had been drinking. I remember being in the hospital at Kowanyama making a complaint against my sister. She had cut my left arm in the wrist area and I was severely injured. I was taken to the Cairns base Hospital where I had an operation immediately followed by a further operation two days later. In all I spent about a week in hospital. The injury caused me great pain. I have limited use of my left hand now and I can not close it properly. I have limited sensation in my little finger.

…

9. The injury inflicted by the respondent is very serious. The respondent is my sister and I still have no idea why she cut me. Many of my minor veins and a major artery were cut. I could have bled to death. I have nerve damage and multiple tendon damage. Despite surgical intervention I will not regain proper function of my left hand. My left wrist at the site of the wound has a bunching of tissue the size of a golf ball. I have a large “Y” shape scar which extends completely across my wrist and down towards my elbow. As stated previously this injury caused me major pain and discomfort for a number of weeks and now I have a residual disability. I also had three further wounds inflicted by the Respondent, namely on my left upper arm, just below my left elbow and another behind my right shoulder. Each of these wounds is approximately 5 centimetres long.”

[7] On 13 July 1999, the Applicant consulted Dr Ian Curtis, Consultant Psychiatrist. Dr Curtis noted as follows:-

“5.4 Nina remembered being evacuated to Cairns. She was very scared then. She was scared of the cut and what it might mean and what might happen. She was crying in pain. She did not know what to do, she said. She could not understand what was going on.

…

8.0 Physical Status

8.1 Photographs have been provided of residual scars and deformities.

8.2 Her distal forearm is scared and deformed. She has residual weakness in her hand. She had lost some sensation in the ulnar distribution over the medial palm and 4th and 5th digits.

…

10 Psychiatric Diagnosis

10.1 Multiaxial Diagnostic Report

Axis I: Clinical Disorders and other Conditions that may be the focus of clinical attention

It would appear that she has probably suffered a mild, at the upper limit of mild, Acute Stress Disorder from which she recovered quickly and fully.

Axis II: Personality

Normal Premorbid personality.

Axis III: General Medical Condition

Her distal forearm is scarred and deformed. She has residual weakness in the hand. She had some loss of sensation in the ulnar distribution over the medial plain and 4th and 5th digits.

Axis IV: Psychosocial and Environmental Problems

None

Axis V: Global Assessment of Functioning Scale

Her Global Assessment of Functioning Scale score was 90.”

[8] Dr Curtis’ report went on the explain the relevance of a score of 90 on the
Global Assessment Function Scale:

“90-81 Absent or minimal symptoms (eg mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (eg an occasional argument with family members).

…

11.0 Summary Conclusions

11.1 This is an Acute Stress Disorder which resolved within weeks.

11.2 This was a mild nervous shock in the middle range of mild.”

[9]

I am satisfied that the evidence supports a claim for compensation under the
following items contained in the Schedule to the Act –

16.	Fracture/loss of use of arm/wrist
26.	Stab wound (severe)
28.	Facial Disfigurement and bodily scarring (severe)

I am not satisfied that the applicant has suffered any mental or nervous shock.

I am satisfied that there was no conduct on the part of the applicant which contributed to her injuries.

Because of the significant overlapping of the above schedule items I do not consider it appropriate to make separate assessments. In my view $37,000 is an appropriate figure for compensation in this case.