McVeigh v Lazarus

[2006] QDC 12

[2006] QDC 012

DISTRICT COURT

CIVIL JURISDICTION

JUDGE TUTT

No 97 of 2005

MARGARET ELIZABETH MCVEIGH	Applicant
and
VANESSA ANNE LAZARUS	Respondent

BEENLEIGH

..DATE 15/02/2006

ORDER

HIS HONOUR: (1) The applicant, Margaret Elizabeth McVeigh, claims compensation under part 3 of the Criminal Offence Victims Act 1995 (the Act) for alleged bodily injury she sustained arising out of the criminal conduct of the respondent, Vanessa Anne Lazarus, who was convicted by the District Court at Beenleigh on the 24th of March 2005 for assault occasioning bodily harm whilst armed to the applicant on the 9th of April 2004.

(2)  The respondent, although being served with the application, made no appearance at the hearing.

(3)  The application for compensation is made pursuant to section 24 of the Act, and is supported by the following material:

a)the affidavit with exhibits of the applicant sworn 16 August 2005 and filed at Beenleigh on 24 August 2005;

b)the affidavit with exhibits of Samit Seth, solicitor, sworn 18 August 2005 and filed at Beenleigh on 24 August 2005;

c)the affidavit with exhibits of Geoffrey Leonard Grantham sworn 8 August 2005 and filed at Beenleigh on 24 August 2005;

d)the affidavit of Suzette Rustina McDonald with exhibits sworn 31 January 2006 and filed at Beenleigh on 3 February 2006.

(4)  The facts of this matter are as follows:  The circumstances of the incident are summarised in the sentencing remarks exhibited to the affidavit of Samit Seth and detail where the applicant was struck by a knife in the shoulder, thrown by the respondent after a verbal and physical confrontation at the premises where both parties resided.

(5)  The applicant's skin was not broken but the impact of the knife on the applicant left her with scratches and a marked bruise to her upper right arm in the shoulder region.  The applicant has also suffered post-traumatic stress disorder from the incident.

(6)  It is submitted on behalf of the applicant that her injuries consist of: (i) bruising and lacerations to the right shoulder; and (ii) mental or nervous shock.

(7)  The applicant's claim for mental or nervous shock is supported by the report and findings of the psychologist, Geoffrey Grantham, who sets out her medical history prior to the assault, and the effect of the assault on her future.

(8)  Although the applicant has had an unfortunate prior history of childhood trauma which has resulted in the applicant suffering significant psychological disturbance in the past, together with other traumatic adult life experiences, the psychologist has opined that the incident in question "contains several elements that can be expected to have had a significant adverse effect on Ms McVeigh" (refer page 7 of his report).

(9)  He summarises his opinion by saying, "In summary, the knife thrown at Ms McVeigh lead to a typical post-traumatic response with some symptoms of that response and her capacity to recover from it being diminished by psychological fragility and a pre-existing disturbance arising from severe childhood abuse" (see page 7 of his report).

(10)  In all the circumstances I find that the applicant's injuries fall under the following categories of injuries in Schedule 1 of the Act, namely (a) item 1, bruising and laceration minor; (b) item 31, mental or nervous shock minor.

(11)  Taking all relevant matters into account I assess the quantum of the applicant's compensation for the bodily injury she sustained on the 9th of April 2004 as follows:

a)in respect of item 1, the sum of $1,500 representing 2 per cent of the scheme maximum;

b)in respect of item 31, the sum of $6,000 representing 8 per cent of the scheme maximum;

The total amount, therefore, is $7,500.

(12)  In deciding the amount of compensation payable to the applicant I must also take into the account the behaviour of the applicant that directly or indirectly contributed to the injury; see section 25(7) of the Act.

(13)  I have referred to the circumstances of the incident above and 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 her.

(14)  My final orders will therefore be, I order:

a)that the respondent pay to the applicant the sum of $7,500 by way of compensation for the bodily injuries caused by the respondent to the applicant, for which the respondent was convicted by the District Court at Beenleigh on 24 March 2005;

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

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