Re McDonald

[1995] QSC 217

IN THE SUPREME COURT

OF QUEENSLAND  Mot. No. 397 of 1995

Brisbane

Before the Hon. Justice Mackenzie

[Re McDonald]

IN THE MATTER of The Queen v Ronald William ANDERSON

- and -

IN THE MATTER of "the Criminal Code"

- and -

IN THE MATTER of an application for criminal compensation by JAN McDONALD

JUDGMENT - MACKENZIE J.

Judgment delivered   01/09/1995

CATCHWORDS:     CRIMINAL LAW - Compensation - Injuries inflicted after breakdown of relationship - Loss of income, pain, loss of enjoyment of life - Assessment of compensation according to principles of assessment in civil personal injuries cases - Time within which applications to be brought considered.

COUNSEL:K. Holyoak for the applicant.

No appearance for the respondent.

SOLICITORS: McInnes Wilson & Jensen for the applicant.

HEARING DATE:      11 August 1995

IN THE SUPREME COURT

OF QUEENSLAND  Mot. No. 397 of 1995

Brisbane

Before the Hon. Justice Mackenzie

[Re: McDonald]

IN THE MATTER of The Queen v Ronald William ANDERSON

- and -

IN THE MATTER of "the Criminal Code"

- and -

IN THE MATTER of an application for criminal compensation by JAN McDONALD

JUDGMENT - MACKENZIE J.

Judgment Delivered   01/09/1995

When this application pursuant to s. 663B of the Criminal Code was before me I concluded that the applicant was entitled to the maximum amount payable but said that I would reduce my reasons to writing at a later date. 

The applicant had been until a short time before the incident living in a de-facto relationship with the respondent, who did not appear at the hearing.  The events which led to the application may be briefly summarised.  After the relationship between the applicant and the respondent had broken up the respondent subjected the applicant to a period of harassment and threats extending over a number of days.  There were incidents in which the police became involved.  However on the evening of the relevant incident the applicant arrived home and was confronted by the respondent who was in a very agitated state.  Prior to leaving her place of employment the applicant had had a conversation with the respondent's brother who had warned her that he was in a very agitated state.  When the respondent confronted her and said that he wanted to talk to her about their relationship she agreed to go for a drive with him.  They went to an area on the esplanade at Paradise Point where, after she went to the toilet under escort by the respondent, they got back into the vehicle.  Suddenly the respondent produced a gun and a knife.  He then lunged at her stabbing her in the left side of the lower abdomen and then in the upper right thigh near the hip.  He attempted to stab her again but she resisted and screamed at him whereupon he desisted.  However although she was in obvious pain he did not obtain help but drove her to a motel where he kept her captive, refusing her pleas for him to call for help all through the night.  The applicant says that at about daylight the pain was becoming overwhelming and after further pleas for him to get help, he left the motel unit.  A short time later the ambulance arrived and she was taken to hospital.  She spent eight days in hospital suffering great pain from her injuries and the surgery performed to correct the abdominal wound.

She has deposed that as a result of the ordeal she suffered loss of income and now has continual pain the source of which has not been successfully diagnosed despite efforts of her medical practitioners.  The heavier aspects of the work that she was doing as a bar attendant now cause her discomfort.  She has unsightly scarring and bulging of the abdomen which has caused her loss of enjoyment of life.  In addition to the physical injuries there is evidence that she has suffered extreme anxiety since the offence and still fears for her safety when the respondent is released from prison.

Mr Holyoak for the applicant calculated damages on the same basis as in civil proceedings at $88,976.00.  One of the difficulties in cases of this kind is that such figures are in practical terms untested because except in rare cases the respondent does not appear.  Ordinarily, although the monies to satisfy ex gratia payments under Chapter LXVA come from the Consolidated Fund, the Crown does not appear.  On only one occasion has the Crown appeared (as amicus curiae) in a matter of this kind before me, Re Farrell (unreported, 13 July 1992) where the material had been served upon the Attorney-General specifically by order of a Judge.  Mr Holyoak referred to Re Farrell as authority for the proposition that the $20,000.00 cap on compensation for mental or nervous shock did not limit an award to that sum if the claim was made in conjunction with other physical injuries.  Counsel's attention was drawn to the recent decision of the Court of Appeal in McClintock  v  Jones (unreported, 7 April 1995).  To the extent that anything in Re Farrell is contrary to that decision by preferring a global approach based on the justice of the case, such view must give way to the decision of the majority that compensation is to be assessed in accordance with the ordinary principles of assessment of damages for personal injury in civil cases.  However, nothing in  McClintock  v  Jones affects the proposition stated above.  On the basis of the majority view the task is to determine what compensation should be paid to the applicant according to ordinary principles of damages but subject to the statutory limits.  I have already observed that the computation of damages and the extent of the applicant's injuries will in most cases remain untested.   In the present matter I have taken the pragmatic view that because the amount of Griffith  v  Kerkermeyer damages claimed is small, the global allowance for future economic loss is small and the other items are either verifiable or consequential upon the specific heads of damage referred to, even if pain and suffering and loss of amenities appears high the amount of damages would be unlikely to fall below the prescribed maximum of $72,000.00.  Accordingly I allowed that sum.  In doing so I took into account that while the applicant in a sense put herself in the position where she was vulnerable by going in the car, she had to make an instantaneous decision in a situation where she was confronted with the choice of going with him in an attempt to calm him down or trying to do the same at her home.  There is no guarantee that, had she chosen the option of not going in the car, a serious attack upon her would not have occurred in any event. 

There is no counterpart to Chapter LXVA in the Criminal Code 1995 which has been passed but not proclaimed. My understanding is that a scheme to replace Chapter LXVA by separate legislation has been under consideration. Whatever scheme eventuates it is in my view desirable that it state clearly the relevant principles so that the variation of views which has persisted throughout the 26 years of operation of the present provisions is not repeated.

As Chapter LXVA stands, McClintock  v  Jones requires the principle to be adopted that, subject to the statutory maximum, damages are to be calculated on a basis equivalent to civil damages.  The problem of "ambit claims" being made without any real opportunity to test their validity has economic consequences.  Firstly, the amount awarded will often tend to be at the high end of the range by default.  Secondly, if a system of the Crown appearing on such applications is instituted that will add to the expense.  Thirdly, the tendency to bring applications based on copious specialist medical reports, often long after the incident has happened, has got away from the original notion of a quick and relatively inexpensive scheme for compensating victims for the injury suffered.  Perhaps a relatively short time limit for bringing applications should be considered.

Further, the requirement to have regard to the Workers' Compensation Act scale in applications under Chapter LXVA is difficult to apply in practice because injuries in criminal matters rarely correspond with those in the table.  Further, it has the potential to create anomalies of a random kind.  For example, a person whose economic loss was high because he could not work in a specialised job because he had lost a thumb as his only injury would be entitled to only 30% of the maximum sum.  However, if as well as losing the thumb he also suffered another separate but identifiable non-table injury, even a minor one, he would recover the maximum amount.  There would also appear to be the potential for anomalous results in the rare event that s. 663E was sought to be applied, as might the case where an offender subsequently acquired sufficient wealth to make civil action for the full amount of damages attractive.  All of these matters might be taken into account in any new scheme.

The formal order is that the respondent pay the applicant in the sum of $72,000.00 with costs to be taxed.