Purcell v Purcell
[2006] QDC 239
•25 May 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
Purcell v Purcell [2006] QDC 239
PARTIES:
ROBERT PATRICK PURCELL
Applicant
And
GWENDA JEAN PURCELL
Respondent
FILE NO/S:
No. 14 of 2006
DIVISION:
Civil
PROCEEDING:
Criminal compensation
ORIGINATING COURT:
District Court, Ipswich
DELIVERED ON:
25 May 2006
DELIVERED AT:
Ipswich
HEARING DATE:
8 May 2006
JUDGE:
Richards DCJ
ORDER:
The respondent is ordered to pay the applicant the sum of $13,200 by way of compensation for injuries caused to the applicant
CATCHWORDS:
Criminal compensation – contribution to injuries by actions
COUNSEL:
Ms James for the Applicant
No appearance for the Respondent
SOLICITORS:
Legal Aid Office for the Applicant
On 16 August 2002 the applicant, who was the respondent’s nephew was at the respondent’s house. They had all been drinking and the respondent had been at the local hotel. When she returned from the hotel she saw the applicant with his young cousin wrestling. She thought they were having a real fight so she left the room and returned with a kitchen knife. She started stabbing the applicant. He held his hands in front of his face to protect himself and he was stabbed with the knife, once in the left hand and once in the right wrist. She was then restrained by another member of the family and he ran out of the house.
The matter was reported to the police and he was taken to the Ipswich Hospital.
On 25 July 2003 the respondent pleaded guilty to one count of causing Grievous bodily harm and was sentenced to a suspended term of imprisonment. The applicant now applies for criminal compensation pursuant to the Criminal offence victims Act 1995.
When the respondent came home from the hotel she had been told that the applicant had assaulted her son. The applicant in his committal evidence conceded that he put his foot on his head and was pressing down. This is how the subsequent fight started because another child in the house took issue with the applicant’s actions and a fight had developed. The respondent was told that the applicant had been stamping on her sons head and upon hearing that she became very upset and grabbed the knife and assaulted the applicant.
As a result of the assault the applicant suffered a deep laceration to the left thenar eminence - approximately 2cm long into the abductor pollicis brevis muscle and a deep laceration to the dorsum of the right wrist approximately 4.5cm long penetrating the extensor digiti minimi tendon. He also suffered nervous and mental shock as a result of the attack.
He was seen by Dr Stephen Frederiksen, an orthopaedic registrar at West Moreton Health Service on 14 February 2005 who prepared a report for this application. He noted that the applicant was taken to the operating theatre and his two wounds were explored. Sutures were applied. He had the laceration on the dorsal aspect of the right wrist and again sutures were applied. He had three appointments at the outpatients clinic.
Dr Mark Robinson, a hand and upper limb surgeon also provided a report dated 27 June 2005. He said that the applicant sustained a laceration across the base of his left thumb and laceration across his right wrist. There was a 3cm curved scar over the basis of the thenar eminence on the left thumb and a slight wasting of the thenar muscles with an adherence of scar tissue at the base of the thumb. On the right hand there was a 5cm transverse scar over the dorsal and ulnar aspect of the applicant’s right wrist with a 3cm longitudinal extension towards the elbow.
It was also noted that he had sustained a subsequent injury to the right arm on 5 August 2003 which was self inflicted. This has affected the use of his arm significantly on the right side.
The doctor opines that he has a 1% impairment of the whole person function as a result of the scarring, the laceration at the base of the left thumb and the partial detachment of the thenar muscle and 2% impairment of the whole person as a result of scarring over the dorsal aspect of the right wrist.
He was also seen by Dr Spelta of the Goodna Community Clinic on 31 October 2002. He said that he was suffering with acute post traumatic stress disorder and thought he was going to die. He had nightmares, hyper arousal and hyper vigilance with shortness of breath and sweating as a result of the assault. Three months after the assault he was still profoundly effected and unable to lead a normal life.
He was further seen by Dr Barbara McGuire, a psychiatrist on 1 June 2005. Her report outlines some of the effects of the offence, namely nightmares, increased drinking, and ruminating about the incident. He has a preoccupation with somatic complaints. The incident is always on his mind, he feels angry towards the respondent and frightened when she is drinking.
Dr McGuire opines that he was not suffering from a psychiatric disorder at the time that she saw him. She noted that he was diagnosed with post traumatic stress disorder six weeks after the incident but she says he now suffers from symptoms of irritability, increased drinking and restless sleep. She says that she believes that the irritability and increased drinking may have existed had the attack not occurred but the attack by his aunt may have made a significant material contribution to all his symptoms.
The applicant is entitled to compensation under the Act. The question arises as to whether he contributed to his injuries under section 257 of the Criminal OffenceVictims Act 1995.
It is clear from the submissions made on behalf of the respondent at sentence that the applicant assaulted the respondent’s son and was in the process of assaulting another child when the respondent walked through the door. In those circumstances, it must be said that the applicant did in some way contribute to his injuries. He did not ask for grievous bodily harm to be caused to him but he did act in a provocative way towards the respondent by his actions. In my view his compensation needs to be reduced because of that contribution.
He is entitled to compensation under the Act. In relation to the stab injuries he is entitled to 12% of the award maximum namely $9,000 and in relation to the mental or nervous shock he is entitled to 10% of the scheme maximum namely $7,500 which is the total amount of $16,500. His compensation should be reduced by 20% for his contribution.
ORDER
The respondent is ordered to pay the applicant the sum of $13,200 by way of compensation for injuries caused to the applicant
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