Kidner v. Barber

[2001] QSC 467

SUPREME COURT OF QUEENSLAND

CITATION:              Kidner v Barber [2001] QSC 467

PARTIES:                 JOANNE GAIL KIDNER

(applicant)

v

ELIZABETH MAY BARBER

(respondent)

FILE NO/S:              654 of 2001

DIVISION:               Supreme Court Trial Division PROCEEDING:    Application for Criminal Compensation ORIGINATING

COURT:  Supreme Court

DELIVERED ON:    7 December 2001

DELIVERED AT:     Townsville

HEARING DATE:           3 December 2001

JUDGE:  Cullinane J

ORDER:Applicant   awarded   a   sum   of   $35,625   by   way   of compensation

CATCHWORDS:            CRIMINAL LAW AND PROCEDURE - JURISDICTION, PRACTICE   AND   PROCEDURE   –   JUDGMENT   AND PUNISHMENT      –      DISPOSAL      OF      PRISONERS’ PROPERTY  AND  ORDERS  FOR  RESTITUTION  AND COMPENSATION  –  QUEENSLAND  –  where  applicant seeks compensation under Criminal Offence Victims Act 1995 in respect of stab wound, scarring and mental or nervous shock – where applicant’s life at risk from injury sustained – where respondent convicted of attempted murder of applicant

– where applicant contributed to her injuries by her conduct resulting in reduction of compensation

Criminal Offence Victims Act 1995 (Qld)

COUNSEL:  AJ Kimmins for the applicant

No appearance for the respondent

SOLICITORS:          Tony Bailey Solicitors for the applicant

No appearance for the respondent

2

[1]     The applicant seeks compensation under the  Criminal Offence Victims  Act

1995 in respect of injuries sustained by her on 23rd February 2000 at Palm

Island. She is a single woman born on 17th March 1981.

[2]     The respondent was convicted of attempted murder and sentenced to eight years imprisonment.  She did not appear on the application. The relevant events  occurred  at  the  home  of  the  applicant’s  brother  with  whom  the respondent was involved in a relationship.  It seems that the applicant brought a cask of wine to the house and as a result an argument started between the applicant and the respondent who went to the kitchen and obtained a knife. She stabbed the applicant in the neck. The applicant also sustained a wound to the left upper forearm and back.

[3]     Fortunately the applicant, who was unconscious when the ambulance arrived, was able to be treated very quickly.  Her life was at risk from the injury she sustained.

[4]     She has made a complete recovery from her physical injuries but is left with scarring as shown in the photographs which were tendered.  According to Mr Ryan, a psychologist, she suffers from post traumatic stress disorder.  He recommends that she have psychotherapy although he says that the condition is resistant to treatment and fluctuates in its intensity.

[5]     According  to  Mr  Ryan,  she  will  continue  to  suffer  from  physical  and emotional and psychological impacts of the attack for the foreseeable future.

[6]     I have already referred to the scarring. The most noticeable of the scarring is to the back of the applicant’s neck.

[7]     For the applicant, it is contended that she suffers sequelae of the accident which falls into three categories:

[8]     a) stab wound (severe)

[9]     b) facial disfigurement or bodily scarring (severe)

[10]     c) mental or nervous shock (severe)

[11]     I accept the argument that (a) and (c) fall into the severe category but I would regard the scarring as falling into the moderate category.

[12]     I assess compensation as follows:

[13]     a) stab wound (severe) - $20,000

[14]     b) scarring (moderate) - $7,000

[15]     c) mental or nervous shock  (severe) - $20,000

[16]     The total of these sums is $47,500.

3

[17]     In passing sentence, I said:  “I am satisfied that you were the subject of a good deal of taunting by the complainant this evening and that some of it related to your recently deceased father-in-law with whom you had a close bond and that this undoubtedly was a factor in the way in which you reacted".

[18]     The transcript of evidence was not before me on the application.  However these matters do justify a finding that the applicant contributed to her injuries by her conduct.  In the absence of any further or more detailed information about the conduct of the Applicant, I think it appropriate to adopt a moderate approach to the reduction on these grounds under s.25 of the Act.

[19]     I award the applicant compensation in the sum of $35,625 representing a 25%

reduction upon the total compensation assessed.