Payne v Blackman

[2005] QDC 255

[2005] QDC 255

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 3977 of 2004

GARRY PAYNE	Applicant
and
LIAN MARIE BLACKMAN	Respondent

BRISBANE

..DATE 18/08/2005

JUDGMENT

CATCHWORDS: Criminal Offence Victims Act 1995 - applicant stabbed in face by his de facto - event inexplicable - parties reconciled at sentence but said to have separated subsequently - service of application effected by applicant where process servers failed - single award for wound and scarring - award for mental or nervous shock although psychiatrist could not diagnose any illness

HIS HONOUR:  This is an application by Mr Garry Payne for

compensation under the Criminal Offence Victims Act 1995. The

respondent is Ms Lian Marie Blackman, a young Aboriginal woman

decades younger than the applicant, who had a relationship

with him said to have been of five years duration and very

close for the last two years leading up to the offence of

unlawful wounding which the respondent perpetrated against the

applicant on 2nd August 2002.

The respondent has not appeared when called today.  The

hearing has been one of those unsatisfactory ones in which

there is no-one present to make a challenge if one could be

made to the applicant's material.

There is the interesting feature that although, according to

the solicitor's letter of 17th November 2004, process servers

couldn't locate the respondent, the applicant, himself, was

able to do so to effect service in Murgon "on or about Friday,

15 July 2005".

At the time of the sentence the Court was informed that the

parties had retrieved their relationship and were still

together, and but for difficulties in finding a parking

place, the applicant would have been in Court to support the

respondent on the sentence.

The facts as presented to the Court on the sentence were that

no explanation could be presented for the totally unexpected

attack which the applicant suffered.  He came home and found

the respondent in the kitchen cooking dinner with what was

described as "a blank look".  She said to him, "Why have you

done this to me?", and launched into an assault with her

hands.  She then followed him into another room, having armed

herself with a knife in each hand.  She stabbed him to the

cheek with what is described as a serrated steak knife.

There is no reason to think that the respondent's presence to

defend this application would have led to the Court being

given information showing that the applicant took any

responsibility for what happened, any more than was the case

at the sentence.  There is no basis appearing on which the

Court should contemplate reducing the amount of compensation

on account of contributory behaviour from the applicant.

The relationship of the parties has come to an end, according

to Mr Smith, representing the applicant, although there was no

information before the Court to that effect until the filing

by leave today of the affidavit of service - the applicant's

principal affidavit being silent on the point.

He now says:

"I say that I still have contact with the respondent,
   Lian Marie Blackman and visit her occasionally.  We are
   not in a relationship."

If, as is likely, the authorities of the State are requested

to meet compensation awarded today in whole or in part, they

may feel obliged to consider what effect, if any, the prospect

of the respondent sharing in the State's largesse should

have.

The claims Mr Smith advances in his helpful written outline of

argument relate to the facial injury aspect and mental or

nervous shock.

The circumstances relevant to the assessment the Court has to

make appear in the report of Dr Donald Grant, a psychiatrist,

who saw Mr Payne on 10th August 2004.

His summary and opinion are as follows:

"Mr Garry Payne is a 48 year old man who describes being
   assaulted by his then de facto on 1 July 2002.  For no
   obvious reason his de facto started to assault him and in
   the process she waved a steak knife around, catching him
   on the left cheek and inflicting a 7 cm laceration which
   extended through to inside the mouth.  Mr Payne underwent
   treatment with suturing at the Royal Brisbane Hospital.
   His de facto was subsequently charged with unlawful
   wounding and put on a good behaviour bond.

Mr Payne described this assault as surprising and
   unexpected, and it clearly would have been quite
   upsetting at the time.  The motivations for the assault
   remain obscure.  His relationship with his de facto
   finished as a result of this assault.

Mr Payne has had some persistent scarring which he has
   been a little self-conscious about.  He has grown a beard
   to help disguise the scar.  There are no other physical
   sequelae.  From the emotional point of view he describes
   some increase in his startle response to loud noises or
   sudden stimuli, occurring mainly when he is at home
   alone.  He had a few bad dreams after the incident but
   his sleep has since then been normal.  There are no other
   anxiety symptoms and his ability to socialise has not
   been affected.

The symptoms described represent only a very mild anxiety
   response with no evidence of a more significant anxiety
   disorder or post-traumatic stress disorder.  It is
   doubtful that the current level of symptomatology really
   merits a psychiatric diagnosis.  However, the increase in

his startle response is the result of the assault and
   will probably persist long term.  The condition does not
   merit psychiatric treatment.  Since he is not
   particularly anxious in any social situations the
   symptoms should not affect his ability to work.  Mr Payne
   may be somewhat inhibited in forming a new relationship,
   but hopes to do so at some stage in the future.

In view of the mild nature of the residual symptom and
   the lack of effect upon his everyday activities, I do not
   believe he could be seen as having any percentage of
   permanent impairment from the psychiatric point of view."

One wonders where the idea that the penalty was a good

behaviour bond came from as the respondent was sentenced to

imprisonment, although that was ameliorated by the making of

an intensive correction order. 

Although one's response to Dr Grant's views might be to reject the aspect of the application under item 31 of the compensation table in the Act, I am of the view that a commonsense approach tells one that a stabbing in the face would very likely lead to "mental or nervous shock" at the time and that it would present one way or another, without the benefit a psychiatrist's or psychologist's diagnosis of an illness.  I am certainly not being critical of Dr Grant and, indeed, it is refreshing in an application of this kind to encounter a professional person who refuses to offer some positive diagnosis.

I think the award ought to contain a component under item 31

which I would somewhat arbitrarily fix at 3 per cent of the

scale range to indicate that it's something more than the

minimum compensable mental or nervous shock in the Court's

view.

Mr Smith's outline has fairly referred the Court to Ferguson

v. Kazakoff [2000] QSC 156, not only in respect of the topic

immediately above, but also in respect of the appropriateness

of avoiding double compensation whereby, for example, a person

in the applicant's position might make claim under items 24 to

26 for a wound and a claim under items 27 and 28 for the

scarring or facial disfigurement.

The sensitivity of Mr Payne about his permanent scarring is

understandable and accepted by the Court.  In so far as the

evidence of more dispassionate assessments is concerned,

there is nothing to suggest that the applicant's appearance

has been rendered horrendous or terrifying, or anything

vaguely approaching that.

Once again, doing the best I can, referring to the items which

Mr Smith contends are relevant, which are 26 and presumably

28, although he asks only for a single award, I don't think

the evidence justifies resort to both scales but, rather, to

the other three in the list that I mentioned, and I think a

suitable award is one which comes within all three of 9 per

cent of the scheme maximum.

The outcome is the respondent is ordered to pay the applicant

compensation of $9,000.

It also should be observed it is unusual the applicant hasn't

disclosed his residential address to the Court.

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