Parry v. Stappas
[2007] QDC 19
•16 February 2007
DISTRICT COURT OF QUEENSLAND
CITATION:
Parry v Stappas [2007] QDC 019
PARTIES:
CHRISTOPHER AUSTIN NELSON PARRY
Applicant
V
ANTONIOS STAPPAS
Respondent
FILE NO/S:
44/06
DIVISION:
Civil jurisdiction
PROCEEDING:
Application for Criminal Compensation
ORIGINATING COURT:
District Court, Brisbane
DELIVERED ON:
16 February 2007
DELIVERED AT:
Brisbane
HEARING DATE:
8 November 2006
JUDGE:
Tutt DCJ
ORDER:
The respondent pay to the applicant the sum of $10,125.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 11 June 2003.
CATCHWORDS:
CRIMINAL COMPENSATION – assault occasioning bodily harm – laceration – minor scarring – mental or nervous shock – applicant’s contribution to own injuries by act of provocation.
Criminal offence Victims Act 1995 ss 24, 25(6) and (7) and 31.
Ferguson v Kazakoff [2000] QSC 156.
COUNSEL:
Mr P. A. Curbishley appeared for the applicant
Ms K. Forrester appeared for the respondent
SOLICITORS:
Compass Legal Solutions for the applicant
Affleck Lawton for the respondent
Introduction:
In this application Christopher Austin Nelson Parry (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury he sustained arising out of the criminal conduct of Antonios Stappas (“the respondent”), who was convicted by the District Court at Beenleigh on 11 June 2003 for the offence of assault occasioning bodily harm whilst armed to the applicant on 20 September 2001 at Woodridge in the State of Queensland.
The respondent was served with the application and supporting documents and was represented at the hearing of the application on 8 November 2006 by counsel.
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 27 March 2006 and filed in this court on 21 April 2006;
(b) The affidavit with exhibits of Ross William Summers, solicitor, sworn 27 March 2006 and filed in this court on 21 April 2006;
(c) The affidavit with exhibit of John Humphrey Morris, orthopaedic surgeon, sworn 3 October 2006 and filed in this court on 3 November 2006;
(d) The affidavit with exhibit of Malcolm Paul McEnery, psychologist, sworn 18 September 2006 and filed in this court on 3 November 2006.
The respondent gave notice to the applicant that he required the applicant and the deponent Malcolm Paul McEnery respectively to be cross‑examined at the hearing.
Facts:
The circumstances of the offence were that the applicant was driving his motor vehicle along a suburban road on 20 September 2001 when he was closely followed by the respondent’s vehicle. The applicant “touched the brakes just to get him off my bumper”, at which the respondent swerved around the applicant’s vehicle to the right and the applicant then gesticulated to him.
The applicant subsequently pulled into a car park at a near‑by shopping centre and the respondent stopped his vehicle immediately behind the applicant’s vehicle so that the applicant was unable to escape. An altercation then took place between the parties at which time the respondent abused the applicant and demanded an apology. The respondent obtained “a set of fibro cutters” from his vehicle and assaulted the applicant with them, striking the applicant on the elbow. The respondent was subsequently charged with the offence referred to in paragraph [1] hereof.
Injuries:
The applicant claims that he suffered the following injuries as a result of the assault:
“(a) small laceration on the right elbow;
(b) tenderness at the area of the right elbow;
(c) severe pain on the right arm, between the right elbow and right shoulder;
(d) two visible scars; and
(e) mental/nervous shock.”[1]
[1]Para 4 of Applicant’s affidavit, filed 21 April 2006.
The applicant further alleges that “the assault has mentally affected me tremendously” in that:
“(a) There was constant pain in my right elbow and right shoulder even as long as sixteen months after the assault;
(b) I suffer general weakness in the right arm and right shoulder which affects me in my care for my epileptic wife, with average of 15 to 20 seizures a month;
(c) There is constant paranoia of white vans travelling behind my vehicle on the road; and
(d) I fear that the respondent will take revenge on me.”[2]
[2]Para 5 of Applicant’s affidavit, filed 21 April 2006.
The applicant was examined by Dr John Morris, orthopaedic surgeon, on 7 March 2006 that is four years and six months post‑incident, who states among other things that the applicant “… developed pain over the right elbow after being hit with a pair of fibro cutters … the current prognosis is for tenderness over the elbow. This should eventually improve but as it has now been present for four years it is a little difficult to know why it has remained as severe. It was noted that he had bruising around the tender area. It is possible that he has recently had trauma to that area which has produced the tenderness I saw today.”[3]
[3]Page 3 of Dr Morris’ report, Exhibit 1 of his affidavit.
Dr Morris has further assessed “The impairment in the shoulder was 0%, he had a full range of movement. The impairment in the right elbow was 0%, he had a full range of movement. The impairment in the right wrist was also 0%.” Dr Morris further states “he complains of tenderness over the elbow with pain. Pain as you are aware is a subjective symptom. It is a little difficult to know why the pain has persisted over the last four years. There is no obvious cause for it. He has not sought any investigations or treatment to try to clarify the situation. Plain x-rays are normal.”[4]
[4]Ibid at page 3.
It would appear from Dr Morris’ report that in general terms so far as his speciality is concerned, there are no residual effects whatsoever from the index assault.
Mental or nervous shock:
The applicant was also examined by Mr McEnery, psychologist, on 21 May 2004, that is two years and eight months post‑incident.
Mr McEnery reported that the claimant reported to him that his “List of Stressors” are as follows:
“A consistently sore elbow.
The injury negatively affected his pleasure of gardening due to the severe levels of pain he experiences during this activity.
Limited amount of sleep (I do not get much sleep).
Poor quality of sleep (very light sleep).
Often reliving the traumatic event, especially whilst driving.
Always being on edge whilst driving.
Often having feelings of being vulnerable, jumpy, fearful and uncomfortable.
Occasionally undergoing feelings of despair.”[5]
[5]Page 2 of Exhibit 1 to Affidavit of Malcolm Paul McEnery.
Mr McEnery also confirms that the applicant “… in 1997 became full-time carer for his wife due to her serious epilepsy condition.”[6]
[6]Page 3 of Exhibit 1 to Affidavit of Malcolm Paul McEnery.
Finally, Mr McEnery opines that:
“My diagnosis for Mr Parry is Post-traumatic Stress Disorder (PTSD) of chronic duration. The symptoms are in the severe range. This diagnosis differs from depression in that the symptoms are more in the hypervigilance and hyperarousal domain. This diagnosis differs from anxiety in that the symptoms are not generalised to all of life but is simply specific to this particular trauma.”[7]
[7]Ibid p 8.
Cross-examination of Applicant:
In cross‑examination the applicant stated that the reason he consulted the psychologist was because “I was advised by the solicitor ah, Compass Legal Solutions”[8] and that “… you went to see Mr McEnery, the psychologist, for the purpose of getting a medical and legal report – yes, I did.”[9]
[8]Transcript p 14 line 55.
[9]Transcript p 15 line 1.
The applicant further confirmed that the respondent had “… never done anything since 2001 … that would give you any reason to have fear that he’d take revenge – no.”[10]
[10]Transcript p 15 lines 33-7.
The applicant further confirmed that prior to consulting the psychologist, as he was advised to do, he had not sought any medical treatment for mental shock or anxiety.[11]
[11]Transcript p 20 line 25.
Cross‑examination of deponent McEnery:
The psychologist, Mr McEnery, was also cross‑examined on a number of issues in his report, the effect of which would seem to be that the basis of his diagnosis of the applicant was substantially reliant upon the applicant’s self‑reporting of his symptoms and that other “stressors” in the applicant’s life, particularly his caring full‑time for his wife “… may also cause him a significant level of distress, anxiety, depression or worry.”[12]
[12]Transcript p 10 line 55.
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 the 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.
Categories of injury:
The applicant claims compensation for the following categories of injury contained in Schedule 1 of the Act, namely:
(a) Item 1 – bruising/laceration (minor/moderate) (percentage of scheme maximum 1‑3 per cent);
(b) Item 27 – Facial disfigurement or bodily scarring (minor/moderate) (percentage of scheme maximum 2-10 per cent); and
(c) Item 33 – Mental or nervous shock (severe) (percentage of scheme maximum 20‑34 per cent).
The respective amounts claimed under the above categories are:
(a) 1 per cent $750.00
(b) 2 per cent $1,500.00
(c) 20 per cent $15,000.00
$17,250.00
Less applicant’s contribution (10 per cent) $1,725.00
Net claim $15,525.00[13]
[13] Page 3 of Applicant’s submissions.
Applicant’s contribution:
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).
It is conceded on behalf of the applicant that his gesticulation to the respondent was a source of provocation and that any compensation awarded should be reduced by the equivalent of 10 per cent contribution.
Findings on categories of injury:
On the basis of all of the evidence before me, I make the following findings in respect of the categories of injury under which the applicant’s respective injuries fall, namely:
(a) Item 1 – bruising/laceration (minor) – based upon the applicant’s own evidence contained in his affidavit and the evidence of Dr John Morris, orthopaedic surgeon, who effectively could find very little wrong with the applicant – 1%;
(b) Item 27 – facial disfigurement and bodily scarring (minor) – based upon the applicant’s own evidence contained in his affidavit in that the blow which the applicant received “… caused a small laceration” only and Dr Morris’ report confirming that the “… cut to the right arm which he said was only superficial. He did not have to have it stitched. He went to see his own doctor who dressed the cut for him. He said that the area around the cut was sore for a few weeks after he was hit quite hard” – 2%; and
(c) Item 32 – mental or nervous shock (moderate) – based upon the applicant’s own evidence contained in his affidavit and the evidence of the psychologist Mr McEnery, who conceded in cross‑examination that many of the tests to which the applicant was subjected were reliant upon the applicant’s “self reporting” and upon which his diagnosis was made. In addition to this, the applicant did not seek any medical treatment for his mental or nervous shock condition post incident and consulted the psychologist only after being advised to do so by his legal advisers for the purpose of obtaining the medico‑legal report, being Exhibit 1 to Mr McEnery’s affidavit filed – 12%.
I therefore assess the quantum of the applicant’s compensation for the bodily injuries he sustained on 20 September 2001 as follows:
| (a) In respect of item 1, the sum of $750 representing 1 per cent of the scheme maximum; | $750.00 |
| (b) In respect of item 27, the sum of $1,500 representing 2 per cent of the scheme maximum; and | $1,500.00 |
| (c) In respect of item 32, the sum of $9,000 representing 12 per cent of the scheme maximum. | $9,000.00 |
| TOTAL (before contribution) | $11,250.00 |
I further find that the applicant contributed to his own injuries to the extent of 10 per cent pursuant to s 25(7) of the Act, so that his compensation shall be reduced by this percentage.
I therefore order that the respondent pay to the applicant the sum of $10,125.00 by way of compensation for the injuries he sustained.
In accordance with s 31 of the Act, I make no order as to costs.
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