Morphew v Clarke

[2005] QDC 85

DISTRICT COURT OF QUEENSLAND

CITATION:

Morphew v Clarke & Ors [2005] QDC 085

PARTIES:

SCOTT MORPHEW
(Applicant)
v
 ADAM FRANCIS CLARKE
(First Respondent)

And

TRAVIS AARON MCLEOD

(Second Respondent)

And

SALAR FARHAD MORSALI

(Third Respondent)

FILE NO/S:

BD550 of 2005

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court

DELIVERED ON:

5 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

5 April 2005

JUDGE:

Tutt DCJ

ORDER:

That the respondents or any one of them pay to the applicant the sum of $8,250.00 by way of compensation for injuries caused by them to the applicant for which the respondents were convicted by this Court on 6 February 2004.

CATCHWORDS:

Criminal compensation – robbery in company with personal violence – bruising and laceration – neck and back injuries – compensation Schedule 1 – mental or nervous shock.

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

Ferguson v Kazakoff [2000] QSC 156.

SOLICITORS:

Mr Thomas of Woods Prince Lawyers for the applicant.

No appearance of the first and second respondents.

Third respondent appeared in person.

Introduction

1. The applicant, Scott Morphew, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for personal injuries he sustained on or about 15 June 2002 arising out of the criminal conduct of the first, second and third respondents, Adam Francis Clarke, Travis Aaron McLeod and Salar Farhad Morsali respectively, all of whom were convicted by this court at Brisbane on 6 February 2004 of robbery with personal violence to the applicant on or about the said 15 June 2002. All of the respondents have been served with the application and supporting affidavits with exhibits. There was no appearance on behalf of the first and second respondents while the third respondent was present in person in court but was not legally represented.

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 7 February 2005 and filed on 18 February 2005; and

(b)        the affidavit with exhibits of Mark Andrew Thomas, solicitor sworn 17 February 2005 and filed on 18 February 2005;

(c)        the affidavit with exhibit of Malcolm Fraser Wallace, orthopaedic surgeon sworn 11 February 2005 and filed on 18 February 2005;

(d)        the affidavit with exhibits of Harvey Alick Whiteford, psychiatrist sworn 5 January 2005 and filed 18 February 2005;

(e)        two affidavits of service of Kenneth Kevin Welsh both sworn 9 March 2005 and filed on 14 March 2005; and

(f)        an affidavit of service of Peter Wong, police constable sworn 31 March 2005 and filed by leave on 5 April 2005.

Facts

1. The applicant swears that he was the victim of an assault by the respondents in Bridge Street, Fortitude Valley, Brisbane on 15 June 2002.  The altercation included the applicant being punched and/or kicked about the face and/or right arm by one or other or all of the respondents over a period of about five (5) minutes after being pursued by the respondents without provocation.

1. As I read the transcript of proceedings before his Honour Judge Healy QC being Exhibit “MAT4” to the affidavit of Mark Andrew Thomas it is not possible to distinguish among the respondents as to their individual or respective responsibility for the injuries suffered by the applicant so that as a result each of the respondents are collectively responsible for the applicant’s injuries.

Injuries

1. The applicant’s injuries are described in the exhibits to the affidavits of the applicant, Scott Morphew, Malcolm Fraser Wallace, orthopaedic surgeon and psychiatrist Harvey Alick Whiteford respectively with medical reports setting out the extent and sequelae of the applicant’s injuries.

1. It would appear that the applicant sustained the following injuries:

1.          Scattered abrasions to his face around both eyes;

2.          Swelling laterally around his right eye with redness of the lateral conjunctiva;

3.          Swelling over the right occipital area;

4.          Scattered grazes to the scalp with associate tenderness;

5.          Some bleeding behind the right ear;

6.          Injuries to his neck and back; and

7.          Symptoms of post traumatic stress disorder.

1. It is submitted on the applicant’s behalf that his injuries should be assessed under the following items of the compensation table as it appears in Schedule 1 of the Act:

Item 1	Bruising/Laceration	3%	$2,250.00
Item 22	Neck/back injury	10%	$7,500.00
Item 31	Mental or nervous shock	5% - 10%	$3,750.00 - $7,500.00
TOTAL	18% - 23%	$13,500.00 - $17,250.00

1. I agree with the categories of injury submitted.

Item 1 – Bruising and lacerations

1. The evidence under this category of injury is that of the report dated 20 August 2004 from Dr Ken Wilkie MBBS of the Waterford Medical Centre and being Exhibit “SJM2” to the applicant’s affidavit filed 18 February 2005 where Dr Wilkie states:

“These injuries were consistent with the stated alleged cause.  The injuries consisted of scattered soft tissue injuries without any evidence of permanent damage.  I would have expected these injuries to resolve without treatment.  Scott has been seen on several occasions since then and there is no further mention of related injuries.”

Item 22 – Neck/back/chest injury

1. The evidence under this category of injury is that of the report dated 18 November 2004 from Dr Malcolm Fraser Wallace, orthopaedic surgeon and being Exhibit “MFW1” to his affidavit filed 18 February 2005 where Dr Wallace states:

“Scott Morphew has been involved in an assault and has sustained injuries to his neck and back as well as abrasions which have healed.  He remains disabled by ongoing symptoms in his neck and back.  I do not think that he requires any further investigations or treatment.

His continuing symptoms of neck and back pain relate directly to his assault.  They are continuing to affect his ability to enjoy his activities of daily living and his work.

I would consider that his symptoms are due to a chronic soft tissue injury to his neck and his back.  There is no further medical treatment that is likely to assist him.”

Item 31 – Mental or nervous shock

1. The evidence under this category of injury is that of the report dated 23 November 2004 from Professor Harvey Alick Whiteford and being Exhibit “HAW1” to his affidavit filed 18 February 2005 where Professor Whiteford states:

“1. Scott Morphew developed symptoms of a post traumatic stress disorder type which lasted for two or three weeks after the assault.  I am unable to confirm that they would have, at that time, met the threshold for a diagnosis of post traumatic stress disorder or any other mental disorder.

2. At the time I examined Mr Morphew he did not meet the DSM IV diagnostic criteria for any mental disorder and the symptoms reported are residual, subclinical manifestations of a post traumatic stress disorder type.

These symptoms have resulted in Mr Morphew avoiding the area where the assault occurred (Fortitude Valley), being more hyper vigilant when driving at night and reacting with increased levels of agitation to situations which, for him, resemble the assault.  As far as I am aware there has been no adverse impact on his employment prospects or social relationships.

3. His symptoms have resolved slowly over time and will continue to gradual remit.  He does not require any psychological or psychiatric treatment.”

1. As to whether this applicant has suffered mental or nervous shock has to be measured in the light of the authorities on point and a very useful guide is to be found in the matter or Ferguson v Kazakoff [2000] QSC 156 where Thomas JA said at [17]:

“Clearly, the ordinary usage of the term ‘nervous shock’ has been to describe situations of 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.”

1. His Honour also said at [21]:

“It is extremely difficult to define the point at which mental consequences to a claimant from a crime become compensable as ‘mental or nervous shock’.  I consider however, that if nothing more is shown than fear, fright, unpleasant memories or anger toward an offender, or a combination of such reactions, the claimant has not shown that he or she suffered nervous shock.  Unless the court is affirmatively satisfied that mental or nervous shock has been suffered compensation should not be awarded for such reactions.”

And further:

“To limit compensation to cases where a diagnosable mental disorder or psychiatric illness results, would give the term “mental or nervous shock” too limited a meaning.”[1]

[1] At paragraph [21].

1. On balance, I am prepared to accept that the applicant has suffered minor symptoms which just qualify as “…some abnormal condition of mind…over and above that of normal human reaction or emotion following a stressful event” but at the lower end of the range and the assessment will reflect this finding.

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 confrontation in paragraphs [3] and [4] above and I am of the opinion that the applicant’s behaviour did not in any way contribute to the injuries he sustained at the hands of the respondents.

Assessment

1. Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on or about 15 June 2002 as follows:

(a)   In respect of Item 1, the sum of $2,250.00 representing 3% of the scheme maximum; and	$2,250.00
(b)   In respect of Item 22, the sum of $3,750.00 representing 5% of the scheme maximum.	$3,750.00
(c)   In respect of Item 31, the sum of $2,250.00 representing 3% of the scheme maximum.	$2,250.00
TOTAL	$8,250.00

1. In view of my conclusions as set out above, I therefore order that the respondents or any one of them pay to the applicant the sum of $8,250.00 by way of compensation for the injuries he sustained. 

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