Phillips v Phillips

[2010] QDC 503

[2010] QDC 503

DISTRICT COURT

CIVIL JURISDICTION

JUDGE JONES

No 1165 of 2009

JOLENE MAREE PHILLIPS	Plaintiff
and
RICHARD LEON PHILLIPS	Respondent

BRISBANE

..DATE 24/11/2010

ORDER

HIS HONOUR:  This is an application for compensation pursuant
to section 24 of the Criminal Offences Victims Act 1995.  The
application arises out of injuries suffered by the applicant
as a result of offences committed by the respondent on
25 December 2005.  The respondent was the applicant's husband at the time.

The respondent was in Court earlier this morning but
he was not present when this application was heard at 2.30.
There is an affidavit of service which exists which no doubt
would explain his attendance here earlier in the day.  His
name was called three times by the bailiff but he was not
present so the application proceeded in his absence.

As I said previously, this application arises out of offences
committed by the respondent.  On 4 May 2006 the respondent
pleaded guilty in this Court to one count of deprivation of
liberty and one count of common assault.  The respondent was
sentenced to a period of imprisonment for two years suspended
after eight months with an operational period of two years.
At the time of the offences the applicant was 30 years of age
and the respondent 36 years of age.

The particulars of the offences as set out in the Schedule of
Facts presented to the sentencing Judge indicate that the
incident would have been a terrifying experience for the
applicant and the children.  In the house occupied by the
applicant and the children at the time, they were confronted
with the respondent who was armed with a kitchen knife in what
the respondent himself described as a "hostage" situation.  When the police arrived the respondent had locked all the doors and taken door keys from the possession of the applicant.

During the course of these events the applicant was required
to pass the children through a window of the house to the
police who were standing outside.  It was while this was
occurring that the respondent pushed the complainant into the
bedroom door with such force as to cause her a significant
shoulder injury.  Thereafter the respondent held the applicant
against the bathroom door and punched the door immediately
above her head on several occasions.  All this occurred while
the respondent was still holding a knife and the applicant
clutching a six month old child of the marriage.  As I have
said, not surprisingly the incident would have been extremely
traumatic for the applicant and the children.

In respect of the shoulder injury the applicant was treated
and in particular was treated by a Mr Skippen, a
physiotherapist.  In Mr Skippen's opinion the applicant had
sustained a ligamentous injury to her left shoulder and soft
tissue damage to her neck resulting in an incapacity or loss
of function in the order of five to 10 per cent.  In
Mr Skippen's opinion it was likely that the applicant would
continue to suffer ongoing instability in her shoulder.  This
has been borne out to some extent by the fact that some five
years after the offences occurred the applicant still suffers
from problems in respect of her shoulder.
The scheme of the legislation is that a maximum allowance of
$75,000 in compensation is provided for.  In the schedule of the legislation various injuries are identified and a range of
percentages of the scheme maximum are prescribed.  The
percentage regime is meant to cover situations in respect of
each of the injuries identified ranging from minor through to
moderate to severe.  In regard to neck, back, chest injuries
the range is from 2 per cent through to 40 per cent, 2 per
cent being the bottom of the minor range, 40 per cent being
the upper limit of the severe range.  The range for a minor
injury of that type is 2 to 7 per cent.

In this case the applicant seeks 7 per cent.  That 7 per cent
is at the top of the minor range and somewhat surprisingly, is
at or about the mid-range allowed for for a moderate form of
this injury.

Having regard to the likely permanent incapacity caused to the
applicant's shoulder as evidenced by the symptomatology which
she still suffers from some five years later, I consider that
while the percentage of 7 per cent might tend toward the
generous, it is nonetheless reasonable in all the
circumstances and accordingly in respect of that injury I will
allow the sum of $5,250.

Turning then to the injury of mental or nervous shock.  The
scheme provides for a minor level of injury of that type a
range of 2 to 10 per cent; for a moderate injury of that type
10 to 20 and; for a severe injury of that type 20 to 34 per
cent.

The applicant was examined by the psychiatrist, Ms Deborah
McGuire.  Ms McGuire, after reporting a number of the symptoms
and effects of the events as related to her by the applicant,
records in her report that:

"She exhibits post-traumatic stress disorder as characterised
by flashbacks which she experiences when she hears loud
banging noises, nightmares, avoidant behaviour, emotional
numbing, hypervigilance etcetera and she suffers it to a
severe degree."

It is on this basis that the applicant contends that the
starting point for this injury should be 34 per cent, that
being the upper limit of the severe range for this injury.
However, unfortunately for the applicant the incident which I
am concerned with was but one incident in the history of
domestic violence.  As reported by Dr McGuire the applicant
has been conditioned to the violence by the respondent over
many years however the incidents being the subject of this
application were described by the applicant as being the worst
she had experienced and in her words had put her "over the
edge" and made it difficult for her to function as a mother,
sister, daughter or friend.

It was Dr McGuire's opinion that the previous episodes of
domestic violence perpetrated by the respondent but not the
subject of any criminal proceedings, materially and
significantly contributed to the applicant's condition but
nonetheless was of the opinion that the subject incident was
so severe that if it were, in fact, the only incident of
violence against the applicant it would have been probably
sufficient to result in a level of post-traumatic stress
disorder at the severe end of the range.

Having regard to what might be described as the applicant's
predisposition to suffering post-traumatic stress disorder or
similar psychiatric or mental injury or symptomatology, it is
contended on behalf of the applicant that the allowance of 34
per cent ought to be reduced to 20 per cent.  An allowance of
20 per cent would place the injury, according to the schedule
under the Act, at the upper end of the moderate form of injury
for this type or the bottom end of the severe form of injury
of this type.

As has been recognised in a number of cases, it is often
difficult to be precise in formulating the appropriate level
of compensation and accordingly, to put it bluntly, sometimes
a broadbrush approach has to be adopted.  In my opinion this
is such a case.

Having regard to the circumstances surrounding this
application and the diagnosis of Dr McGuire, I consider that
the percentage contended for, namely 20 per cent is justified,
even allowing for the applicant's predisposition it would seem
to me to be unreasonable to reduce the level of impact below
the upper end of the moderate form of injury of this type.
In my view, apart from those matters to which I already
referred, there are no further reasons to reduce the amount of
compensation sought by virtue of any contribution or
contributory actions on the part of the applicant.

For the reasons given I determine compensation under the
heading of neck, back and chest injury in the amount of $5,250
and under the heading of mental or nervous shock in the amount
of $15,000 resulting in the total compensation being $20,250.

...

HIS HONOUR:  There will be orders as per the draft with the
insertion of the amount of $20,250.

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