Lacey v Fuller - [2006] QDC 14

No judgment structure available for this case.

[2006] QDC 014

DISTRICT COURT
CIVIL JURISDICTION
JUDGE TUTT
No 155 of 2005

GREGORY CYRIL LACEY Applicant
and
REBECCA JANE FULLER Respondent
BEENLEIGH
..DATE 16/02/2006
ORDER

16022006 D.1 T3/PF(SPT) M/T BNL1/2006 (Tutt DCJ)

[1] The applicant, Gregory Cyril Lacey, claims compensation 1

under part 3 of the Criminal Offence Victims Act 1995 (The criminal conduct of the respondent, Rebecca Jane Fuller, who was convicted by the District Court at Beenleigh on 10 January

10

2005 for the offence of wounding the applicant on 12 January
2002.
[2] The respondent, although being served with the
application, made no appearance at the hearing.

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[3] The application for compensation is made pursuant to
section 24 of the Act and supported by the following material:
(a) The affidavit with exhibits of the applicant sworn 29

November 2005 and filed at Beenleigh on 30 November 2005; (b) The affidavit with exhibits of Jacqueline Elizabeth

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Lamond, solicitor, sworn 17 November 2005 and filed at
Beenleigh on 30 November 2005;

(c) The affidavit with exhibits of Steve Morgan,
psychologist, sworn 2 June 2005 and filed at Beenleigh on

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30 November 2005;

(d) The affidavit with exhibits of Andrew Jenkins, medical
practitioner, sworn 14 November 2005 and filed at
Beenleigh on 30 November 2005;

(e) The further affidavit of Jacqueline Elizabeth Lamond,

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with exhibits, sworn 13 February 2006 and filed by leave
today, the 16 February 2006.

The facts of this matter are as follows:
16022006 D.1 T3/PF(SPT) M/T BNL1/2006 (Tutt DCJ) 2 ORDER 60

1

[4] The circumstances of the incident are summarised in the
applicant's statement to police exhibited to his affidavit and
detailed that at the relevant time, the applicant was at home
in his caravan watching television. The respondent arrived at

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his front door. He went outside to speak with her, when she
requested money from him for drugs. The applicant refused her
request and was then stabbed by the respondent in the chest
with a weapon of some description. The applicant could not
remember the respondent carrying a weapon when he spoke to

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her, nor does he remember much of what happened during the
period immediately after being stabbed, and when he awoke in
the Logan District Hospital. The applicant described the
wound as about "10 centimetres long and about 5 centimetres
deep." There is no report before the Court from the hospital

30

detailing the applicant's condition or treatment. Dr Jenkins,
a medical practitioner and plastic surgeon, described the
residual scar in his report of 11 April 2005.
[5] It is submitted on behalf of the applicant that his

40

injuries are as follows:
(a) Bodily scarring, (minor); and
(b) Mental or nervous shock, (moderate).
[6] The applicant has a residual scar across his right upper

50

chest as a result of the attack by the respondent. Dr Andrew
Jenkins saw the applicant on 11 April 2005, more than three
years post injury, and in his report exhibited to his
affidavit, states:

3 ORDER 60

16022006 D.1 T3/PF(SPT) M/T BNL1/2006 (Tutt DCJ)

1

"His problems now include aching in the area of the scar
on the right side of the chest. He says he has some pain
in his right arm. He is not really concerned regarding
the appearance of the scar. He has no loss of feeling in
association with the scar. The scar is located on the
right pectoral region orientated obliquely. The scar is
pale and inconspicuous, measuring 85 millimetres in

length and 4 millimetres in maximum width." 10

Dr Jenkins further summarises his estimate of the permanent impairment to the applicant in the following manner:

"I would assess the permanent impairment rating as half a 20
percent of the whole person."

[7] The applicant's claim for mental or nervous shock is
supported by the report and findings of the psychologist, Mr
Steve Morgan, who examined the applicant on the 14 April 2005,

again, some three years post injury. Mr Morgan opines that: 30
"My professional view is that Mr Lacey has experienced
psychological distress associated with this assault
incident. He described trauma and some low mood
symptoms. I believe that such symptoms would meet the
threshold for an adjustment disorder with anxiety and
depressed mood (DSM IV-TR 309.28) within the context of

the DSM IV-TR. My view is that your client's functioning 40
has been compromised by distress over a period of three
years from the time of the assault/stabbing, and at which
time his psychological distress can be understood as
having been at a more heightened level." (Paragraph 49)

Dr Morgan further opines:

"Taking into account his experience at the time of 50
initial assault and the continuing negative effect, my
professional view is that such distress has been of
moderate severity and of moderate effect in terms of
impairment." (Paragraph 50)

4 ORDER 60

16022006 D.1 T3/PF(SPT) M/T BNL1/2006 (Tutt DCJ)

[8] I note however, that the applicant's sexual relationship 1
with the respondent resumed approximately 12 months after the
incident took place, though in the applicant's words:
"albeit with anxiety such that he has not allowed her to

stay overnight, such that sexual activity has been during 10
the day only" - (paragraph 19 of Mr Morgan's report).

[9] With respect to the categories of injuries, I find that the applicant's injuries fall under the following categories of injuries in schedule 1 of the Act, namely:

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(a) Item 27; bodily scarring (minor/moderate), and
(b) Item 32; mental or nervous shock (moderate)
[10] Taking all relevant matters into account, I assess the
quantum of the applicant's compensation for the bodily injury

30

that he sustained on the 12 January 2002 as follows:
(a) In respect of item 27, the sum of $3,750 representing
5 percent of the scheme maximum, and

(b) In respect of item 32, the sum of $7,500 representing

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10 percent of the scheme maximum.

That makes a total of $11,250.
[11] In deciding the amount of compensation payable to the

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applicant, I must also take into account the behaviour of the
applicant that directly or indirectly contributed to the
injury (section 25(7) of the Act.)
16022006 D.1 T3/PF(SPT) M/T BNL1/2006 (Tutt DCJ) 5 ORDER 60

I have referred to the circumstances of the incident above and 1

I am of the opinion that the applicant's behaviour at the relevant time did not either directly or indirectly contribute to the injury complained of by him.

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My final orders will therefore be:- I order:
(a) That the respondent pay to the applicant the sum of
$11,250 by way of compensation for injuries caused by the
respondent to the applicant for which the respondent was
convicted by the District Court at Beenleigh on 10

20

January 2005, and

(b) In accordance with section 31 of the Act, I make no order
as to costs.

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50

6 ORDER 60

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GREGORY CYRIL LACEY	Applicant
and
REBECCA JANE FULLER	Respondent
BEENLEIGH ..DATE 16/02/2006
ORDER

[1] The applicant, Gregory Cyril Lacey, claims compensation	1
under part 3 of the Criminal Offence Victims Act 1995 (The criminal conduct of the respondent, Rebecca Jane Fuller, who was convicted by the District Court at Beenleigh on 10 January

"I would assess the permanent impairment rating as half a	20
percent of the whole person."

the DSM IV-TR. My view is that your client's functioning	40
has been compromised by distress over a period of three years from the time of the assault/stabbing, and at which time his psychological distress can be understood as having been at a more heightened level." (Paragraph 49)

"Taking into account his experience at the time of	50
initial assault and the continuing negative effect, my professional view is that such distress has been of moderate severity and of moderate effect in terms of impairment." (Paragraph 50)

[8] I note however, that the applicant's sexual relationship	1
with the respondent resumed approximately 12 months after the incident took place, though in the applicant's words:

stay overnight, such that sexual activity has been during	10
the day only" - (paragraph 19 of Mr Morgan's report).

I have referred to the circumstances of the incident above and	1
I am of the opinion that the applicant's behaviour at the relevant time did not either directly or indirectly contribute to the injury complained of by him.