Lee v Heath

[2004] QDC 80

DISTRICT COURT OF QUEENSLAND

CITATION:

Lee v Heath [2004] QDC 080

PARTIES:

JOANNE MARY LEE

Applicant

v

PAUL MICHAEL HEATH

Respondent

FILE NO/S:

D3/2004

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation.

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

23 April 2004

DELIVERED AT:

Ipswich

HEARING DATE:

25 February 2004

JUDGE:

Richards DCJ

ORDER:

Respondent is ordered to pay the applicant the sum of $15,000 compensation.

CATCHWORDS:

Compensation- Nervous Shock

SOLICITORS:

Ms F Muirhead of Legal Aid for the applicant
No appearance for the respondent

1. This is an application for criminal compensation pursuant to the Criminal Offence Victims Act 1995 (the Act). The respondent pleaded guilty in the District Court at Ipswich to robbery with personal violence and was sentenced to 12 months imprisonment.

1. On 10 October 2002 at 8.00am the applicant went to a small store at Redbank Plains.  The applicant is deaf and she was on her way to the Deaf Society when she stopped into the shop to buy cigarettes.  She noticed a male standing in the store looking at some shelves as she walked into the shop.  She purchased the cigarettes and walked out of the store with her purse and mobile phone in her hand.  As she walked around the corner she could feel her arm being pulled behind her back enough to hurt her shoulder and she felt her purse being pulled out of her hand.  She then dropped her mobile phone.  It was the respondent who then smiled at her and ran away.  She lost $800 in notes and $20 in coins in her purse.

1. She did not suffer any physical injury as a result of the offence.

1. She consulted her general practitioner after the offence for treatment in relation to ongoing stress and panic attacks and he prescribed Aropax.  She was seen by Dr Barbara McGuire who diagnosed her with severe post-traumatic stress disorder which has been evident since the offence.

1. Dr McGuire states that the post-traumatic stress disorder is characterised by nightmares, flashbacks, disturbed sleep, avoidance of queues reminding her of the incident and a more restricted lifestyle.  Dr McGuire states: 

“As the offence occurred she described herself as being overwhelmed and stunned. Immediately after the offence she experienced anger, fear and a great sense of loss.  She has been offered considerable support by her parents, friends and her fiancée.  She, however, is a great deal more wary and  hypervigilant particularly when she approaches an automatic teller machine.  She believes bad things are likely to happen to her and has embraced a more limited lifestyle as a result.  She has made use of telephone counselling from Lifeline whenever she feels ‘down and out’.  She has not had face to face counselling and does not want this.  I believe her symptoms may last for a period of two to three years and that she has been rendered more vulnerable to subsequent stresses.”

1. The applicant in her affidavit deposed to the fact that she found the offence shocking and distressing and that because of her disability she has trouble being aware of everything that is going on around her. The offence has left her feeling vulnerable and afraid.  She feels unsafe now in going out shopping, and only will go to centres where there are lots of people and where she knows and is familiar with the shopkeepers.  She becomes panicky when anyone bumps into her and she feels vulnerable even at home, which is not something that she experienced before.  She is reluctant to go out, and she has suffered nightmares, flashbacks and problems sleeping.  She is worried that the respondent may try and hurt her once he is released from gaol.

1. She did not contribute in any way to her injuries.

1. She does have some pre-existing vulnerabilities which Dr McGuire details in her report: 

“I believe that there are contributing factors.  She suffered a severe trauma at the age of 13 and did develop post-traumatic stress disorder symptoms after that which settled fairly quickly.  However, I believe the current offence has reactivated those symptoms.  In addition, she has been rendered more vulnerable because of her disabilities and experience of physical violence in her marriage.  She developed what appears to be a depressive illness as a result of this.  At this stage she has recovered from her depressive illness but regards herself as having a lower threshold to stress or circumstances such that she is unable to be employed.  She appears to have low average intellectual ability, which may render her more vulnerable.”

However, Dr McGuire goes on to state: 

“However, I believe that the offence made a material contribution to her post-traumatic stress disorder and the likelihood is that had the antecedents not existed she would have developed a similar clinical picture.”

1. It has long been established that in these proceedings as well as in personal injuries actions the respondent must take the victim as he or she finds the victim. In this case the respondent must accept the applicant with all her vulnerabilities and the fact that he has caused her more stress because she had a hearing impairment. She is thus less able to adjust her lifestyle to guard herself against a repeat of this sort of behaviour.

1. The applicant is entitled to compensation under item 33 namely severe mental and nervous shock Her post-traumatic stress disorder will continue for a further two to three years but probably not longer. The appropriate award for the applicant is 20 percent of the scheme maximum and that is $15,000.

ORDER

The respondent is ordered to pay to Joanne Mary Lee the sum of $15,000 under s 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence which led to the conviction of Paul Michael Heath on 7 May 2003 upon indictment for one count of robbery with personal violence.