Hipperson v Steel

[2010] QDC 370

DISTRICT COURT OF QUEENSLAND

CITATION:	Hipperson v Steel [2010] QDC 370
PARTIES:	Paul Michael Hipperson (applicant)
v
Daniel Thomas Steel (respondent)
FILE NO/S:	377/10
DIVISION:	Civil
PROCEEDING:	Application for criminal compensation
ORIGINATING  COURT:	District Court at Brisbane
DELIVERED ON:	6 October 2010
DELIVERED AT:	Brisbane
HEARING DATE:	31 August 2010
JUDGE:	Griffin SC DCJ
ORDER:	I order the respondent to pay to the applicant by way of compensation the sum of $22,500.00
CATCHWORDS:	CRIMINAL COMPENSATION – GRIEVOUS BODILY HARM - sufficiency of evidence to prove “mental or nervous shock” – meaning in s 20 of Criminal Offence Victims Act1995 – whether diagnosable mental disorder necessary – whether “anxiety adjustment disorder” compensable.
COUNSEL:	D C Kalle (Solicitor) for the Applicant S Shearer for the Respondent
SOLICITORS:	DK Law Solicitors for the Applicant
Carrol Fairon Solicitors for the Respondent

1. This is an application for compensation pursuant to the provisions of the Criminal Offence Victims Act 1995 (“COVA”). The compensation claim is for injuries suffered as a result of the commission of a criminal offence, grievous bodily harm by the respondent against the applicant. The offence was committed on 5 July 2008 and the respondent was sentenced in the District Court Brisbane on 2 October 2009.

2. The circumstances of the offence briefly are that the applicant had attended a party with friends and as the sentencing remarks disclose, after the applicant had left the gathering, he was assaulted by a single punch to the jaw by the respondent which caused grievous bodily harm. The circumstances of the offence according to the sentencing basis was that the applicant had not provoked the offence.

3. The legislation provides for compensation to be paid according to a scale relative to the seriousness of the injury for a physical injury which includes an injury whereby mental or nervous shock is suffered as a consequence of the criminal act.

4. The respondent resists the application to the extent that any independent allowance should be made for bruising/laceration as a result of the grievous bodily harm which it is accepted caused a fracture to the jaw. I will return to this issue shortly. However, fundamentally the respondent’s argument is that no sufficient basis has been demonstrated by expert or other appropriate evidence for the court to conclude that there is an ingredient of mental or nervous shock properly compensable as a result of the offence which it is, of course, accepted by the respondent to have been committed.

5. As a result of the punch thrown, the applicant sustained a broken jaw, and some bruising/lacerations associated with that. Although bruising/laceration itself is separately compensable, and no doubt, makes the award of damages, if appropriately supported, a transparent one, when dealing with injuries such as bruising/laceration and other related but separate injuries. In this case I have considered whether it is appropriate for the bruising/laceration to be subsumed in the award which I propose to make for the substantial and primary physical injury, the broken jaw. I will make a separate award for bruising/laceration. This, I consider is a sensible approach having regard to the fact that although there is little independent and identifiably separate evidence in relation to the bruising/laceration, it is no doubt that clear that such bruising/laceration was occasioned by the injury. The report of Dr Tite reports amongst other findings an intra-oral compound wound and a left facial swelling and bruising. For this I will award 1%.

   The physical injury – broken jaw

6. This claim is supported by evidence in the affidavit of Paul Michael Hipperson sworn 30 August 2010 which exhibits a collection of medical records from the Allamanda Private Hospital together with reports and notes of Dr D J Tite, the surgeon who saw the applicant for the mandible fracture. The report by Dr David Homewood of the Southport Diagnostic Imaging Centre is also presented as an exhibit to this affidavit. Dr Homewood describes the injury as a “non-displaced compound fracture from within extending through the right mandibular ramus and appearing to breach the buccal surface between and deep to the 37 and 38. The fracture is compound in nature and transecting the canal for the left inferior alveolar nerve”. Dr Darren J Tite’s report of 18 August 2010 opines, “Paul Hipperson was assessed on 7 July 2008 with regard to injuries sustained after an alleged assault around 5 July 2008. Paul described difficulty eating, speaking, and swallowing, and left lower facial numbness … Paul progressed to undergo open reduction within internal fixation of the fractures with wound debridement and repair to the compound defect under general anaesthetic at the Allamanda Private Hospital on 8 July 2008. At review Paul had recovered well and displayed no evidence of operative complications. The bony segments appear stable; feeling in the left lower face remains reduced, but appears to be improving with time. Paul was reviewed on 14 October 2008 at which time lower facial numbness was present, but noted to be improving with time. A plate (internal fixation) was noted to be exposed through the gum of the left lower jaw which was not infected.” I am satisfied on the evidence that there was a physical injury, ie a bodily injury in accordance with the meaning under s 20 of COVA. The extent of the injury is sufficiently described in the medical reports and I think it appropriate to make an award of 17% in the circumstances.

   Psychological injury – mental or nervous shock

7. Much of the submissions by the respondent were directed to this question. In summary, the respondent argued that no sufficient basis had been established by any appropriately qualified person to found the applicant’s case on mental or nervous shock.

8. The applicant relies on the report of Dr Rebecca Ray, a clinical psychologist, whose qualifications include a doctorate of clinical psychology with a research component in post traumatic stress disorder. As I understand the respondent’s position, it is not argued that Dr Ray’s qualifications should be ignored, but rather that on the facts and circumstances of this case, having regard to the material with which Dr Ray was presented, there was no proper or appropriate material upon which the doctor could have given an expert opinion which could be accepted by this court. Although the onus is on the applicant to prove his case, nonetheless the respondent declined to cross examine Dr Ray or the applicant.

9. It is necessary, I think, to deal in some detail then with the details and basis of that report.

10. The applicant was assessed by what Dr Ray described as a structured clinical interview on 24 November 2009. As Dr Ray said in her report:

    “As part of the assessment, Mr Hipperson completed validation psychometric instruments in order to obtain objective and quantified information relating to his current level of functioning.” (Emphasis added.)

11. The report also took into account a number of other documents including transcript of court proceedings on 2 October 2009.

12. Dr Ray considered the estimated level of psychological functioning prior to the assault and estimated the applicant’s pre-morbid level of functioning in the 81 to 85 range, ie, good functioning in all areas.

13. The applicant then provided Dr Ray with an independent version of the events which led to the assault. From her report of those facts I conclude that they are not inconsistent with the case which was litigated before me on sentence.

14. Page 3 of the report (which is reproduced below) then continued:

15. Pages 4 and 5 of the report provided as follows:

16. The notion of mental or nervous shock has received some attention from courts charged with considering matters of compensation. Although there has been some controversy about the issue, I propose to follow the approach by Thomas J as he then was in Ferguson v Kazakoff [1] where his Honour said:

    “There is a preliminary question whether the evidence is sufficient to justify a finding that the applicant has suffered “mental or nervous shock” because of the offence”

    ….

    “It has been noted in a number of cases including R vChan-Fook [2] that “psychiatric injury” should not be taken to be established by proof of mere emotions such as fear or distress. That seems plainly right both as a proposition of law and fact. However, it does not provide an answer to the present question. In my view, “mental or nervous shock” is a wider term that psychiatric injury or disorder. The difficulty lies in determining how much wider it is.”

    [1] [2000] QSC 156.

    [2] (1994) 1 WLR 689, 695.

17. I see no reason on the material to reject what the applicant himself says about his condition and I am prepared to consider this as an ingredient in the issue of mental or nervous shock.

18. In the affidavit of the applicant sworn 27 January 2010 at paragraph 3 and following the applicant said, “As a result of the attack I suffered a fractured left mandible, severed facial nerves and damaged viscera and blood vessels. At paragraph 4, “I also suffer from short term memory loss and mild pain in my face caused by the severed facial nerves. As a result of the attack my sleeping patterns have changed significantly and I have become more introverted”.

19. The introversion sensed by the applicant, in my view, is an appropriate ingredient of mental or nervous shock for I accept that that introversion has directly resulted from the injury inflicted by the respondent.

20. Furthermore, in Dr Ray’s report I accept the applicant’s description of symptoms not present before the assault including low mood, poor concentration, anger and irritability, short term memory loss, feelings of worthlessness, being easily fatigued, loss of motivation, low energy, social withdrawal, loss of interest and pleasure in previously enjoyed activities, pessimistic and ruminative thinking, tearfulness, agitation, intermittent anxiety, loss of self confidence and self esteem, and sleep disturbance, and more closely to the event, post traumatic stress symptoms including intrusive unwanted thoughts and images about the assault, physical and psychological hyper-arousal when reminded of the assault, and being overtly alert for signs of danger amongst other symptoms.

21. Dr Ray’s report had as part of its foundation an objective investigation into the applicant’s condition, and I accept that these matters are also reflected in the later validated psychometric testing instrument; “the depression”, anxiety and stress scales (“DASS”) (Lovibond, 1955). Dr Ray’s opinion is that as the results of clinical interview together with the history provided the opinion is supported that as a direct consequence of the assault on 5 July 2008, the applicant suffered a psychological injury within the parameters of the Criminal Offence Victims Act.

22. Dr Ray then referred to the approach taken by Thomas J in Ferguson’s case, although it is unclear precisely to which passage or principles she adverted. Nonetheless, I am entirely satisfied that the applicant has demonstrated that mental or nervous shock has been occasioned as a direct result of the offence committed by the respondent. Furthermore, I am likewise satisfied that the applicant did not contribute in any way to the injury.

23. It is reasonable to conclude on the whole of the material including Dr Ray’s report, (which is supported in its appendices by the testing regime she used), that the applicant has suffered from an anxiety adjustment disorder of moderate severity.

24. On my view of the material, this should be regarded as being at the lower end of the moderate scale and I will allow 12%.

    Order

25. I order the respondent to pay to the applicant by way of compensation the sum of $22,500.00