Koowarta v Comprabar

[2001] QSC 166

SUPREME COURT OF QUEENSLAND

[2001] QSC 166
No 2845 of 2001

BETWEEN:

DESLEY MAY KOOWARTA

Applicant

AND:

LEN GEORGE COMPRABAR

Respondent

MOYNIHAN J - REASONS FOR JUDGMENT

DELIVERED ON:	22 May 2001
HEARING DATE/S:	17 April 2001
ORDER:	The applicant is awarded $60,000 compensation together with costs of and incidental to the application assessed on a standard basis.
CATCHWORDS:	CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER ORDERS RELATING TO DISPOSAL OF PROPERTY – Compensation – Queensland – where applicant suffered grievous bodily harm
COUNSEL:	A. J . Kimmins for the Applicant
SOLICITORS:	Tony Bailey Solicitors for the Applicant

1. This applicant for criminal compensation was born on 23 August 1967.  She was stabbed three times by the respondent at about 10:00pm on 24 January 1986.  Her injuries were stabalised at Aurukun before she was transferred by the Royal Flying Doctor Service to the Cairns Base Hospital on 26 January. 

1. The applicant suffered a puncture wound on the left side of the chest, a laceration to the left lumbar region and a wound in the left posterior ribs area.  She underwent a laparotomy on 28 January.  Internally there was a laceration of the greater curve of the stomach, fluid had collection in the left subphrenic space and there was damage to the left part of the applicant’s diaphragm.  Post-operative complications resolved spontaneously and the applicant was discharged from Cairns Base Hospital on 8 February 1986.  In the opinion of Dr Edwards, a thoracic surgeon who examined her on 30 November 2000, she had suffered severe injuries from which she had made a good recovery.

1. The stabbing occurred in the following circumstances.  The applicant and the respondent who were in a relationship were drinking heavily on 24 January 1986.  The respondent ordered the applicant home but she refused to go or she went off without him – the evidence is not clear.  The applicant and the respondent returned home separately.  The respondent arrived first.  When the applicant came home the respondent was lying in wait for her and had made preparations to carry out the stabbing.

1. On 22 April 1986 the respondent was convicted of grievous bodily harm with intent to cause grievous bodily harm and was sentenced to five years imprisonment.

1. The respondent did not appear or tender evidence.  The evidence for the applicant was on affidavit and was unchallenged.

1. As might be expected the applicant was and continues to be adversely affected mentally and physically by the attack on her which was without any justification.  That she is adversely affected mentally is supported by a psychologist’s report.  I am not prepared to conclude, as he has, that following and as a consequence of the stabbing the applicant developed chronic post-traumatic stress disorder with anxiety and depressed mood, alcohol dependent, borderline personality disorder and depressive personality disorder.  In fact, one wonders as to the usefulness of such a report which apparently does no more than uncritically accept the applicant’s account and states the obvious. 

1. The circumstances of the commission of the offence raise a question of whether the applicant did not have an alcohol problem, if not alcohol dependency, prior to 24 January 1986.  It seems that her relationship with the respondent prior to 24 January 1986 was an abusive one although she said that he had not previously assaulted her.  She told the psychologist that she had no further relationship subsequent to the respondent’s assault but she subsequently had children by different fathers and the applicant and her mother were bringing them up.

1. Those things having been said there is no occasion to doubt that the applicant suffered serious physical and mental trauma as a consequence of the respondent’s attack. 

1. The applicant has made a good recovery in the circumstances from her physical trauma although she still has some physical consequences - she, for example, complains that she becomes more fatigued probably as a consequence of diminished lung capacity.  I accept that she has suffered and continues to suffer psychological trauma although, for reasons which I have indicated, I am not satisfied that her present difficulties are wholly as a consequence of the respondent’s attack.  Given the statutory cap on compensation for “mental or nervous shock” that is probably of little consequence in this case.

1. Compensation falls to be assessed in accordance with the ordinary principles for the assessment of damages in personal injuries;  R v Jones, ex parte McClintock (1995) 79 ACrimR 238. Given the statutory constraints the exercise is somewhat artificial. My attention has not been directed to any injuries specified in the applicable worker’s compensation table.

1. Applying the general principles for the assessment of damages for past and future pain, suffering and loss of amenities to this case and for mental shock and giving effect to the statutory constraints, I award $40,000 compensation together with $20,000 for  “mental and nervous shock”.  A claim for gratuitous care (Griffith v Kerkemeyer (1977) 139 CLR 161) foreshadowed in the written outline of submissions was not pursued. There is mention in the psychologist’s report of psychological counselling sessions but having regard to the reservations I mentioned earlier and uncertainty as to whether the applicant would avail herself of the counselling, I have not made any award in that respect.

1. The applicant should have her costs of and incidental to the application assessed on a standard basis.