Morley v Taylor

[2006] QDC 358

DISTRICT COURT OF QUEENSLAND

CITATION:

Morley v Taylor [2006] QDC 358

PARTIES:

JASON FRANCIS MORLEY

(Applicant)

v

ROBERT JAMES TAYLOR
(Respondent)

FILE NO/S:

D23 of 2006

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

18 August 2006

DELIVERED AT:

Beenleigh

HEARING DATE:

15 August 2006

JUDGE:

Tutt DCJ

ORDER:

The respondent pay to the applicant the sum of $6,000.00 by way of compensation for injury caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 4 October 2005.

CATCHWORDS:

Criminal compensation – threatening violence and unlawful assault – mental or nervous shock.

Criminal Offence Victims Act 1995 ss. 24, 25(6) and (7) and 31.

Ferguson v Kazakoff [2000] QSC 156.

COUNSEL:

Mr L Menolotto for the applicant.

SOLICITORS:

Keith Scott & Associates for the applicant.

No appearance for the respondent.

Introduction

1. The applicant, Jason Francis Morley claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged bodily injury he sustained arising out of the criminal conduct of the respondent, Robert James Taylor, who was convicted by the District Court at Beenleigh on 4 October 2005 for the offences of threatening violence and unlawful assault to the applicant on 19 March 2005 at Beaudesert.

1. The respondent although being served with the application made no appearance at the hearing.

1. The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

(a)        the affidavit with exhibits of the applicant, sworn 15 February 2006 and filed at Beenleigh 1 March 2006;

(b)        the affidavit with exhibits of Samit Seth, solicitor, sworn 17 February 2006 and filed on 1 March 2006;

(c)        the affidavit with exhibit of Geoffrey Leonard Grantham, psychologist, sworn 3 February 2006 and filed on 1 March 2006; and

(d)        the affidavit with exhibit of Frederick Ralph Peet sworn 26 July 2006 and filed on 2 August 2006.

Facts

1. The circumstances of the incident are summarised in the applicant’s statement exhibited to his affidavit and show that on the 19 March 2006 at his residence located in a caravan park at Beaudesert he was threatened with violence by the respondent and subsequently assaulted by him by being attacked with a knife which did not actually strike the applicant but penetrated the door of his caravan from which he was able to escape with his 4 year old daughter and call the police.

1. The applicant described his injuries in his victim impact statement submitted at the sentence hearing of the respondent on the 4 October 2005 in the following terms:

“Although I wasn’t physically assaulted, what transpired on the day of the offence was life threatening and therefore frightening.  I felt that I had been imprisoned in my own caravan not knowing what was going to happen next.  Further if Robbie was to get inside the caravan, I felt that I would definitely be killed along with my daughter.

As a result of the offence, I have suffered mentally and emotionally.  The torture that I had suffered is now an ongoing problem whereby I get flash backs and nightmares of the said incident.  I also suffer from depression, paranoia and anxiety attacks.  I now disassociate myself with the society by not communicating with people that I do not know.  I have had to seek on-going counselling at Community Mental Health Centre at Mt Warren Park.  Further, I have had to relocate my daughter and myself due to the fear of what might happen to us if Robbie was to take revenge.” 

1. The applicant therefore claims compensation for mental and nervous shock pursuant to the schedule to the Act.

Mental and Nervous Shock

1. The applicant’s claim for mental or nervous shock is supported by the report and findings of Dr Geoffrey Leonard Grantham who summarises the applicant’s condition in the following terms:

“The episode he was subjected to in March 2005 was most certainly traumatic. As he experienced events (where) his life and that of his young daughter were seriously threatened.  He had to contend with: a prolonged period of verbal threat and physical violence during which he remained highly fearful; his daughter’s fear, crying and distress; feelings of helplessness; the noise created by Mr Taylor particularly during the time he was bashing at the caravan door; the prospect of having to fight Mr Taylor; almost being stabbed by him; the subsequent belief that he would either have to kill Mr Taylor or be killed by him; and the related belief that if he failed his daughter seemed likely to be murdered.  The use of a weapon is associated with higher levels trauma.

As would be expected following such an incident Mr Morley developed the symptoms of post-traumatic stress disorder and these have persisted to date.  As the sufferer of a schizophrenic illness Mr Morley would have been more at risk of developing chronic PTSD, and as stress is known to exacerbate schizophrenic symptoms it could be expected that this condition has worsened since March 2005.  In some respects Mr Morley has incorporated PTSD symptoms into the unusual beliefs associated with his illness.  Directly as a result of what occurred in March 2005 Mr Morley is now unusually fearful, excessively concerned about his safety, and isolated.  He has to contend with unwanted memories and questions about the incident, what did happen and what might have happened.  There is some evidence of mood disturbance with elevated levels of anger and more depressive symptoms than existed previously.”

1. Applicant’s counsel submits that the applicant’s pre-existing psychological condition has been exacerbated by the index incident and that any assessment of compensation arising out of this application should be calculated on this basis after making the appropriate allowance for such pre-existing condition.  I accept counsel’s submissions in this regard.

1. It is now well accepted that to establish a “mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “(an) injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event” as distinct from “… fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraphs [15, [17] and [21] respectively.

Applicant’s Contribution

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

1. I have referred to the circumstances of the incident in paragraph [4] 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 him.

Categories of Injuries

1. The applicant’s injury falls under the following category of injury in Schedule 1 of the Act, namely:

(a)        Item 31 – Mental or nervous shock (minor) (percentage of scheme maximum 2% - 10%).

1. Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injury he sustained on 19 March 2005 as follows:

(a)   In respect of Item 31, the sum of $6,000.00 representing 8% of the scheme maximum.	$6,000.00
TOTAL	$6,000.00

1. I therefore order that the respondent pay to the applicant the sum of $6,000.00 by way of compensation for the injury he sustained. 

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