Oliver v Lindeblad

[2003] QDC 158

DISTRICT COURT	[2003] QDC 158
CIVIL JURISDICTION
JUDGE HOATH
No 703 of 2003

DEAN WARICK OLIVER Applicant

and

STEPHEN PAUL LINDEBLAD Respondent

BRISBANE

..DATE 26/03/2003

ORDER

26032003 mbl (Hoath DCJ)

HIS HONOUR: This is an application by Dean Warick Oliver	1
for criminal compensation for injuries sustained as a result
of the offence of assault occasioning bodily harm whilst
armed of which the respondent Stephen Paul Lindeblad was
convicted on the 5th of March 2000. That offence occurred	10
on the 13th of March 1999.
The circumstances of the offence that I accepted when
sentencing the respondent was that the complainant entered
20
the respondent's pawnbroking store at Nobby Beach on the
Gold Coast with the intention of pawning a wristwatch.
After some discussion over the value of the watch, the
applicant commenced to leave the store. As he did, he
said, "What do you think I am, a junkie who steals or	30
something?", and then something to the effect of, "I've been
stuffed around by pawnbrokers before and the next time I see
you, I have got a gun and I am going to kill you." The
respondent then made a counter threat to shoot the	40
applicant.
After the applicant left the store, the respondent followed
the applicant to a nearby newsagency. The respondent
50
grabbed the applicant and forced him out onto the roadway.
The respondent then produced a handgun and hit the applicant
across the left side of the face with it. He then cocked
the handgun and put it against the applicant's throat before

ORDER

2  60

26032003 mbl (Hoath DCJ)

pushing the applicant away and saying, "If any of you	1
junkies come to my store, I will shoot you."
I accept that during the incident the applicant thought the
respondent was going to be shoot him. Whilst totally	10
inexcusable, the respondent's actions must be viewed against
the background that his business had been subject to
robberies in the past, including an armed robbery involving
his mother, and that the applicant had just threatened to
20
kill him.
As a result of the offence, the applicant suffered a small
laceration to his face and bruising to his face and neck.
In addition, the applicant complains of some aggravation of	30
a pre-existing back injury. I accept that as a result of
the offence the applicant suffered some emotional trauma
sufficient to constitute mental or nervous shock for the
purpose of a claim for criminal compensation.	40
The laceration and bruising suffered by the applicant can
only be regarded as very minor and an assessment of one
per cent of the scale maximum would be appropriate for that
50
injury. The extent of the back injury is not referred to in
the material and there is no suggestion that the applicant
sought medical treatment for it. In those circumstances, it
is appropriate to allow two per cent of the scale maximum.

ORDER

3  60

26032003 mbl (Hoath DCJ)

The substantial claim made by the applicant is for mental	1
and nervous shock. The applicant states in his affidavit
that as a result of the offence his personal life has been
severely affected. He says for six months he hid from the
respondent as he was fearful that the respondent would come	10
after him. He says that he experienced nightmares for an
extended period of time and his regular sleeping patterns
have been affected. He claims to have experienced
flashbacks of the assault and to experience short-term
20
memory loss and a loss of concentration. He claims to be
constantly fearful of running into the respondent and is now
suspicious and mistrustful of people in general.
This account of the mental and nervous consequences of the	30
offence as related by the applicant must be considered in
the light of the applicant's history of suffering a back
injury in 1995 and not having been gainfully employed since.
40
Subsequent to the back injury, he developed depression which
was no doubt exacerbated by the break up of a de facto
relationship in 1998. On top of that he fell from the
two-storey building in November 2000 and initially became
50
paralysed from the waist down. As a consequence he spent
time in the spinal unit of the Princess Alexandra Hospital
and continues to suffer chronic back pain.

ORDER

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26032003 mbl (Hoath DCJ)

The applicant was seen by Mr Peter Stoker, a clinical	1
psychologist, on the 9th of April last year for the purpose
of this application. Having read the report prepared by
Mr Stoker, I do not accept that after a single session in
which the applicant related the circumstances of the offence	10
without reference to his threat to the respondent, his
complex pre and post offence physical and psychological
history and undergoing a series of psychological tests that
Mr Spoker, a clinical psychologist, could diagnose that the
20
applicant suffered a chronic post-traumatic stress disorder
which without treatment constitutes a 28 to 30 per cent
permanent/partial psychological disability and with
successful treatment, that disability would be reduced to 16
to 18 per cent.	30
Although the applicant would have suffered mental and
nervous shock as a result of the offence committed upon him,
it is not in my view realistic to attribute all the	40
psychological symptoms that the applicant complains of as
being as a result of the offence committed upon him by the
respondent.
50
Doing the best I can on the material before me, I consider
that an assessment of 10 per cent of the scheme maximum for
mental and nervous shock is reasonable. That, together with
the physical injuries gives a total assessment of

ORDER

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26032003 mbl (Hoath DCJ)

13 per cent of the scheme maximum, namely $9,750.	1
Section 27(5) of the Criminal Offence Victims Act provides
that in deciding any amount or what amount should be ordered
to be paid for an injury, the Court must have regard to any	10
behaviour of the applicant that directly or indirectly
contributed to the injury. In this case I am satisfied that
the applicant, by saying to the respondent, who because of
previous experiences was apprehensive about violence,
20
something to the effect, "Next time I see you I've got a gun
and I am going to kill you", provoked the respondent to take
the action he did. Whilst the applicant's statement
provides no legal defence or excuse for the offence that the
respondent committed, I am of the view that by making that	30
statement, the applicant contributed to any injury he
received and any compensation payable to him should be
reduced by one-third.
40
Accordingly, I order that the respondent pay the applicant a
sum of $6,500 as compensation for the injury received by the
applicant as a result of the offence of assault occasioning
bodily harm whilst armed of which the respondent was
50
convicted on the 5th of May 2000.

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ORDER

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