Mi Kyong Ham v Skyring

[2010] QDC 465

[2010] QDC 465

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 195 of 2010

MI KYONG HAM	Applicant
and
MATTHEW HECTOR SKYRING	Respondent

BRISBANE

DATE 23/09/2010

ORDER

HIS HONOUR:  This is an application for criminal compensation to be assessed for personal injury suffered by the applicant as a result of a personal offence committed by the respondent upon the applicant.  The applicant was born on the 26th of March 1958.  She was almost 50 years of age when she suffered a personal injury.  She is now 52 years of age.  She suffered a personal injury on the 1st of February 2008. 

What happened was that she was involved in a traffic accident, however immediately following the accident the respondent exited his vehicle, and whilst brandishing a metal bar in a threatening way and screaming, he ran towards the applicant's vehicle.  Whilst the applicant was still in her vehicle the respondent stood at her driver's side of her vehicle and said, "You wrecked my car," and hit the applicant's car window between two and six times.  The respondent attempted to open the car door but was unsuccessful as the door was locked. 

The applicant's response in her statement to police was that she could not do anything.  She thought she was going to die.  She did not think there was anything that she could do to protect herself and the respondent seemed like a very unstable angry man.  The applicant lay on the passenger seat and covered her face.  A group of males at a nearby hotel apprehended the respondent and subdued him, although he continued to yell and scream in the direction of the applicant. 

The hospital records indicate that the applicant was seen at the QE11 Hospital on the day following the offence.  She was diagnosed as experiencing an acute stress reaction at that time.  The personal offence committed by the respondent upon the applicant was an attempt to unlawfully enter a vehicle with intent to commit an indictable offence and threatening to use actual violence and being armed with an offensive instrument.  He is also charged with wilful damage to the vehicle.  Clearly this offence is a personal offence committed by the respondent upon the applicant.  The applicant also suffered personal injury as a result of that personal offence.

The hospital records also indicate that on the 4th of February 2009 the applicant was taken by ambulance, which had been called by her general practitioner, to be seen at the Princess Alexandra Hospital for psychological injuries.  She remained in hospital for two to three nights.  She had to be readmitted later to the psychiatric hospital; that is later in the year.  She had taken an overdose of tablets.

Her victim impact statement indicates that at the time of the incident she felt scared, fearful and horror and has still ongoing flashbacks of the respondent's behaviour and attempted assault.  She fears to leave home and drive on her own.  She has difficulty talking about the incident.  She has difficulty making social contact, even with people she is familiar with.  She has sought professional counselling for depression and has been admitted to psychiatric ward due to emotional trauma and is constantly teary due to the ongoing feelings of fear and depression.

There is no hiding the facts that the applicant has also suffered substantial physical injuries from the car accident.  They have had an impact on her daily living experiences.  These physical injuries apparently are the subject of reports by a neurologist, Dr Todman, and they have been made available to Dr Morgan, a psychologist who has provided a report concerning the applicant.

Notwithstanding the physical injuries which have also been referred to by Dr Morgan in his report, I accept the applicant has suffered mental and nervous shock.  The acute stress reaction was documented in the hospital reports and Dr Morgan is of the view that the applicant suffered subsequently a post-traumatic stress disorder, which has also been referred to by another psychologist, and she has also suffered an adjustment disorder with anxiety.  He is also of the view that her trauma experiences may also have been periodically associated with depressive responses.

I consider that the applicant has suffered some other factors that could have contributed to her depression, but they are not such as to discount the mental and nervous shock.  It is frankly accepted that the applicant in 2005 suffered from breast cancer and must have still been in recovery phases at the time of this incident, but I do not accept that in any way detracts from the fear and horror she felt at being attacked by the respondent in the way she was at the time of this incident.

She has had anxiety and sleep disturbance.  She has had the physical injuries, but nevertheless I accept Dr Morgan's opinion that she does require psychological and/or psychiatric treatment, the cost of which could be somewhere between $2,600 to $10,000.  Dr Morgan concludes that the assault incident and the continuing effects are such that in his professional view her prior distress was of moderate severity and of mild/moderate effect in terms of impairment, but he believes her current distress as of mild severity and of mild effect in terms of impairment.

His professional view is that her prior experience of distress and impairment are best understood as being in the severe range, but given some adaptation over time, also work capacity and positive relations with her partner and children, he rates her current distress to be in the moderate to severe range and impairment, particularly social and relationships, in the moderate range.

The application was filed on the 21st of January 2010. The Victims of Crime Assistance Act 2009 commenced on the 1st of December 2010. However, the Victims of Crime Assistance Act 2009 provides by section 155 that an application can be made by the end of two months after the commencement of that Act. Therefore this application is within time. The section I have mentioned also provides that the Court to which the application is made must hear and decide the application under the relevant provision, the relevant provision being the Criminal Offence Victims Act 1995. I therefore have jurisdiction to determine this application.

Also I should state on the evidence I am satisfied the applicant did nothing to cause or contribute to her personal injury.  This was a mere accident, but the respondent's reaction was severe indeed and out of proportion to what happened.  The applicant could not be held to blame for what the respondent did which caused her personal injury.

I am also satisfied on the evidence that the respondent has been given notice of this application and that I can proceed to determine the compensation. I bear in mind that in an application of this kind the compensation provided to the applicant is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise. Further, the maximum amount of compensation provided is reserved for the most serious cases and the amount provided in other cases are intended to be scaled according to their seriousness. (See subsections 3 and 4 of section 22 of the Criminal Offence Victims Act 1995).

In all the circumstances, doing the best I can, I have come to the view that following the approach by Mr Justice Thomas in Ferguson v. Kazakoff, ex parte Ferguson, [2001] 2 Queensland Report 320, that the applicant's compensation should be assessed at the mid-range of the mental or nervous shock item for severe, item number 33.  The range is 20 percent to 34 percent and a proper percentage in the circumstances, bearing in mind other factors that may be causing her to be depressed to some extent would be 26 percent.  That is a sum of $19,500. 

I order the respondent to pay the applicant the sum of $19,500.

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