Miller v Wapau

[2000] QSC 433

SUPREME COURT OF QUEENSLAND

CITATION:

Miller v Wapau [2000] QSC 433

PARTIES:

VIOLET ETHEL MILLER
(applicant)
v
REX AKEE WAPAU
(respondent)

FILE NO:

6272 of 2000

DIVISION:

Trial Division

DELIVERED ON:

1 December 2000

DELIVERED AT:

Brisbane

HEARING DATE:

8 September 2000

JUDGE:

Mullins J

ORDER:

1.  The respondent pay to the applicant the sum of $30,000 by way of compensation for the injuries suffered by the applicant by reason of the offence of which the respondent was convicted on 29 April 1985.

2.  The respondent pay the applicant's costs of the application to be assessed.

CATCHWORDS:

CRIMINAL LAW – COMPENSATION – compensation for nervous shock and physical injuries – respondent convicted of unlawful wounding with intent to do grievous bodily harm – claim under s663B Criminal Code (Qld)

Criminal Code

Criminal Offence Victims Act 1995

COUNSEL:

A J Kimmins for the applicant
No appearance for the respondent

SOLICITORS:

Tony Bailey for the applicant

1. MULLINS J: Violet Ethel Miller ("the applicant") applies pursuant to section 663B(1) of the Criminal Code for an order that Rex Akee Wapau ("the respondent") pay to her such sum by way of compensation as is determined by the court for injuries suffered by her by reason of the offence of unlawful wounding with intent to do grievous bodily harm of which the respondent was convicted on 29 April 1985.  The offence was committed on 12 December 1984.

1. Although section 663B of the Code and the related provisions in chapter 65A of the Code were repealed by the Criminal Offence Victims Act 1995, section 46(2) of that Act expressly keeps chapter 65A of the Code in operation in respect of an injury suffered before 18 December 1995 to which chapter 65A of the Code would have applied. 

1. Although served with the application, the respondent did not appear on the hearing of the application.  

1. The applicant in her affidavit sworn on 28 March 2000 explains that she was not aware until recently that she could bring an application for criminal compensation.  Her solicitor deposes to commencing to act for her during January 2000. 

1. The applicant was born on 19 November 1963.  For a period of about 4 years until November 1984 the applicant lived in a de facto relationship with the respondent.  They had two children.  The applicant left the respondent in November 1984 to live with her mother. 

1. On 12 December 1984 there was a street card game outside the house where the respondent lived at Weipa.  Both the applicant and the respondent were at the game.  The facts presented to the sentencing judge were as follows:

"The prisoner was sitting next to Violet Miller.  Heather Miller was also there.  She was sitting with them.  Violet asked Heather for a loan of money to continue playing and the prisoner said, 'Don't give her any money.  I want her to go and sleep now.' What he meant was that he wanted Violet to go to bed with him at that stage.  Violet told him they were finished and she didn't want him any more, but the prisoner kept arguing with Violet and trying to get her to come back to his house.

She got up and walked off, and the prisoner went to his house, got a metal framed chair, and went after Violet with the chair.  He struck her across the left shoulder and side with the chair, knocking her to the ground.  He went over to her and struck her with the chair again.  This time he hit her across the back.  He then ran back to the house.  The house was about 40 metres away.  He went into the kitchen and got a couple of knives from the drawer.  He turned out the light, opened the door and ran after Violet.  He had a knife in each hand.  As he approached Violet, he slowed down to a fast walk.  He came up behind her.  She heard someone scream at that stage, and she says that she then felt two hard blows.  She says she thought the prisoner had punched her twice, once in the right breast and once in the right shoulder.  The prisoner ran off.  As the prisoner ran down the backstairs from the kitchen, he was holding two knives in such a way that the blades were running along his elbows and wrists and pointing towards his elbows."   

1. The applicant was taken to the Weipa Base Hospital.  She was examined and treated by Dr Vernon Moo.  He observed that the applicant did not appear to be "unduly distressed", as in his opinion she was "under the influence of liquor which would have lessened her awareness of any discomfort or pain".

1. On examination the applicant was found to have a 4cm long transverse laceration above the right breast extending to a depth of 2cm into the subcutaneous fat.  This wound was connected by a subcutaneous tract to a second laceration 5cm medial to the first wound.  This second wound was a 1cm transverse laceration extending to a depth of 1cm.  Dr Moo also observed a 1.5cm laceration in the right supraclavicular fossa from which there was air and blood escaping.  Dr Moo explored this wound with a gloved finger and it extended to a depth of greater than 6cm.  He concluded that the apex of the right lung had been punctured. 

1. A chest X-ray taken on that evening did not reveal any haemothorax or pneumothorax.  The applicant was admitted to hospital for further observation and the wounds were sutured.  By the next day there was clinical evidence of the applicant's having developed pneumothorax and a repeat of the X-ray confirmed that finding.  A chest drain was inserted and over the following days the pneumothorax resolved.  Dr Moo expressed the opinion that the applicant "made an uncomplicated recovery".

1. For the purpose of this application the applicant was examined by psychiatrist Dr Ian Curtis.  He has provided a report dated 3 August 2000.  The applicant told Dr Curtis that she feared for her own safety during and after the attack and that it left her with continuing fears, not just as part of the hospitalisation, but also an ongoing fear about safety and social conditions which was aggravated by the social consequences of what was done to her.  The applicant told Dr Curtis that she was subsequently harassed by the respondent's family which forced her to leave Weipa. 

1. She told Dr Curtis that she had been left with ongoing sleep problems as a result of the assault, although she did not specify the period.  The applicant told Dr Curtis that she suffered a great deal of pain in her lung which persisted for more than 4 weeks and that the problem with her nervous state lasted much longer.  She had told Dr Curtis that she was left with anger management problems and that she had become more irritable and intolerant as a result of the assault.  She also told Dr Curtis that the assault made her nervous with people with whom she had felt comfortable before.  At the time of the consultation, the applicant was no longer exhibiting any signs of continuing psychological trauma sequelae or consequent psychiatric illness, as a result of the stabbing.

1. Dr Curtis exhibits to his report photographs which were taken on 28 March 2000 of the residual scar from the laceration in the right shoulder area and the scarring of the wound through the applicant's breast.  Dr Curtis had difficulty in getting the applicant to expose the scars adequately, due to her embarrassment.

1. There is nothing additional in the applicant's affidavit about the consequences of the injuries for her.  She simply describes her injuries as:

(a)         punctured lung;

(b)         severe stab wounds;

(c)         scarring to chest and breast;

(d)        post-traumatic stress.               

1. Dr Curtis expresses his conclusion about the psychiatric illness suffered by the applicant as follows:

"Violet Miller would have suffered a severe Acute Stress Disorder as a result of the assaultive incident and the allied experiences of physical jeopardy.  This would have been, as she said, a severe shock, both to her physical self and to her mental self.  I think it can be regarded as a severe psychological trauma of Acute Stress Disorder.  Whether she went on to develop a full-blown Post-Traumatic Stress Disorder lasting for months or years (given that Acute Stress Disorder, by definition, lasts one month), it is impossible to say at this stage.  However, she does still, a decade and a half later, have residual symptomatology in terms of her discomfiture about her scarring."

1. On the basis of the submissions made on the sentencing of the respondent and the applicant's affidavit, I am satisfied that the applicant did not directly or indirectly contribute to her being stabbed by the respondent. 

1. Subject to the prescribed amounts which cap the amount of the compensation which are set out in section 663AA of the Code, the compensation has to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil actions.  The applicant does not seek compensation for economic loss of any kind of gratuitous nursing care.   

1. As there is a cap of $20,000 in the case of nervous shock, I will assess the damages for nervous shock separately from the damages for other pain, suffering and loss of amenities as a result of the stabbing.  The latter will include the pneumothorax and the residual scarring.  The compensation does not extend to the social consequences of the injuries and the resultant conviction of the respondent, namely the harassment of the applicant by the respondent's family and the applicant's being forced to leave Weipa . 

1. In assessing damages I have considered the numerous decisions on other claims for criminal injuries compensation where both nervous shock and physical injuries were sustained which have been provided by Mr Kimmins of Counsel on behalf of the applicant. 

1. Having regard to the resolution of the stress disorder which followed the incident, I consider that an appropriate amount for nervous shock is $15,000.  The embarrassment which the applicant still feels about her scarring should be compensated as part of the pain and suffering and loss of the amenities of life for the physical injuries which includes the residual scarring.  I assess damages for that component at $15,000.  That makes the total award the sum of $30,000.

1. I therefore order that the respondent pay to the applicant the sum of $30,000 by way of compensation for the injuries suffered by the applicant by reason of the offence of which the respondent was convicted on 29 April 1985.  I also order that the respondent pay the applicant's costs of the application to be assessed.