Kelly v. Gregory

[2007] QDC 277

[2007] QDC 277

DISTRICT COURT

CIVIL JURISDICTION

JUDGE O'SULLIVAN

Application No 1108 of 2007

HELEN LOUISE KELLY  Applicant

and

DANNY LEE GREGORY  Respondent

BRISBANE

..DATE 05/06/2007

ORDER

HER HONOUR:  This is an application by Helen Louise Kelly. 

I am satisfied that the order for substituted service has been complied with.

There are facts which are common to this application and the allied application by Rodney James Kelly are these:  On 17 May 2006, the respondent was convicted of four counts in the Ipswich District Court.  These concerned unlawful wounding and unlawful assault.  Mr and Mrs Kelly were at the hospital.  Mr Kelly was a quadriplegic and wheel chair bound.  He had sustained a workplace accident in August 2003 and had only just returned to anything approaching a normal life at the time of this incident.  He was lying on a bed in a cubicle in the emergency department, when the respondent burst into the cubicle brandishing a knife.  The respondent lunged at Mrs Kelly.  The respondent left the cubicle to return a little later and slashed the right foot of Mr Kelly with the knife.  As noted by Dr Goldsmith in his report, dated 7 February of 2007:

"Mr Kelly recounted the frantic attempts to calm the respondent and remembers pleading with him to be left alone, that he had done nothing to him.  He described how he could not move to get away from Mr Gregory and the helpless horror of seeing him lunge towards his wife.  He and Mrs Kelly said that they both were screaming and at that moment, thought they were at risk of being fatally injured".

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HER HONOUR:  Turning then to Mrs Kelly.  At the time of the incident, Mrs Kelly stepped between her husband and the respondent, in an action which can be described as protective of her husband, as she had been ever since his serious accident at work.

The respondent was suffering a psychotic episode and it is therefore impossible to know what might or might not have occurred, but because she stepped in perhaps, she was the recipient of Mr Gregory lunging at her and she notes that the knife just missed her.  She says: "I felt the knife go very close to my throat".

This of course is a particularly traumatic event for any person, but particularly for a woman who has a quadriplegic husband in a small space with her.

She also watched when the respondent returned and used the knife to cut her husband's foot, knowing that he was totally helpless.

Following the attack, she remained at the Ipswich Hospital overnight and was understandably very distressed and had a discussion with a social worker.  Mr and Mrs Kelly returned home the following day.

She told Dr Goldsmith - and it is noted in paragraph 16 of his report that:

"She recalls vividly the chaotic scene in the hospital.  She recalls both she and her husband screaming and at that moment she thought they were both at risk of being fatally injured".

Dr Goldsmith notes that in recounting the events of the day, at one of his interviews with Mrs Kelly she became distressed and teary.

In a subsequent interview, he noted that she had disturbed sleep.  She told Dr Goldsmith that as at the time he spoke with her, she still sometimes has nightmares.  She had difficulty sleeping for the first six months after the assault, but as at the time of seeing Dr Goldsmith, her sleeping pattern was improved.

One of the factors relevant to Mrs Kelly's claim, is that her fear at the time that if something serious happened and she was wounded, then she would not have been able to care for
Mr Kelly or their children.  She is responsible for the care of those in her family.  The thought that Mr Gregory's action might have deprived her family of her support has occurred to her often.

Dr Goldsmith notes that both Mr and Mrs Kelly are now much more reluctant to go out and Mrs Kelly is now "ever watchful and wary".

Dr Goldsmith diagnosed post traumatic stress disorder, axis (iv) - severe; (5) on a 1-6 scale and global assessment of functioning on axis (v) at 61-70.  He opines that the impact of the incident is in the middle of the moderate range of Item 33 in the schedule.

In his written submissions, counsel for Mrs Kelly submits that an award in the range of about 10 per cent of the scheme maximum is appropriate.  Her symptoms continue and as counsel for the applicant noted in his original written submissions of 23 February 2007, she not only had the fear at the time of a fatal injury, but subsequent disturbed sleep and nightmares, continuing problems with attending hospital (which she has to do because of her husband's permanent medical condition).  She is more security conscious and she has to watch while her husband now grapples with trying to stabilise his life for the second time.  Counsel submits that in those circumstances, an award of 15 per cent is appropriate and I unhesitatingly agree with this, that sum is $11,250.

Counsel referred me to decisions in Williamson v. Simpson [2003] QDC 340; Purcell v. Purcell [2006] QDC 239; Nelson v. Small (single Judge decision, 1 May 2003); Albert v. O'Keefe (single Judge decision, 13 August 2004); Prince v. Bonner [2003] QDC 234 (single Judge decision, 31 July 2003) and I have obtained assistance from those authorities.

I order the respondent to pay the applicant Helen Louise Kelly, the sum of $11,250 by way of criminal compensation.

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