Roberts v Williams
[2010] QDC 390
•15 October 2010
DISTRICT COURT OF QUEENSLAND
CITATION:
Roberts v Williams [2010] QDC 390
PARTIES:
DESIREE ROBERTS
(Applicant)
v
KIRSTY LEIGH WILLIAMS
(Respondent)
FILE NO/S:
12 of 2010
DIVISION:
PROCEEDING:
Application
ORIGINATING COURT:
Toowoomba
DELIVERED ON:
15 October 2010
DELIVERED AT:
Toowoomba
HEARING DATE:
7 October 2010
JUDGE:
Bradley DCJ
ORDER:
I order that the respondent pay to the applicant the sum of $5,250.00.
CATCHWORDS:
CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND - where the respondent was convicted of assaulting the applicant and causing her bodily harm - where there was another assailant who was not convicted - where the applicant suffered mental and nervous shock as a result of the attack – where the respondent is liable for her “direct and material contribution” to the injuries of the applicant pursuant to section 26(6)(a) Criminal Offence Victims Act 1995 (Qld).
Criminal Offence Victims Act 1995 (Qld)
COUNSEL:
SOLICITORS:
Mr S MacDonald, solicitor for MacDonald Law for the applicant
No appearance for the respondent
On 14 March 2008 in the District Court at Toowoomba the respondent, upon her plea of guilty, was convicted of unlawfully assaulting the applicant and doing her bodily harm. The offence was committed on 1 May 2007 at Toowoomba.
The applicant now seeks an order for compensation for the injuries suffered by her because of the offence pursuant to s 24 of the Criminal Offence Victims Act 1995 (the Act).
The respondent was a juvenile at the time of the commission of the offence but was an adult when convicted.
On 7 October 2010 I made an order for substituted service permitting service of the application to be effected on the respondent by placing an advertisement in the Courier Mail newspaper. Service was so effected on 28 September 2010. There was no appearance by or on behalf of the respondent at the hearing of this application.
The applicant and respondent had known each other for three days at the time of the offending. They were both staying at the same residence in Toowoomba with the applicant’s boyfriend and others. The night before the incident occurred, the applicant’s boyfriend was asked to move out of the residence.
On the day of the incident, the applicant and her boyfriend returned to the dwelling to move their belongings. There were other people living at the dwelling at the time. Ms Smith and Ms MacIndoe were both living there. These two girls as well as the respondent were involved in a verbal altercation outside the residence whilst the applicant was collecting her belongings inside. Ms Smith and the respondent then entered the residence and approached the applicant in one of the bedrooms. Ms Smith asked whether the applicant had been talking about her to Ms MacIndoe, and subsequently struck the applicant to the right cheek with a closed fist. At that time, the respondent was standing in the doorway of the bedroom. Ms Smith then grabbed the applicant’s hair and struck her again before leaving the room. The applicant locked the door of the bedroom and continued packing her belongings.
When the applicant later left the bedroom and walked through the kitchen, the respondent asked the applicant what had occurred, before punching the applicant on the nose with a closed fist causing the applicant’s nose to bleed. The respondent dragged the applicant by the hair and punched her again. The applicant curled up to protect herself. The respondent continued to strike the applicant and stated words to the effect of, “Move your arm bitch. Move your arms or you’re dead”. After another resident of the house told the respondent to stop, she ceased her attack on the applicant. The applicant left the dwelling with Ms MacIndoe and her mother and attended the Toowoomba Police Station and the hospital.
No indictment was presented charging Ms Smith with the offences committed against the applicant on that day.
There was no behaviour on the part of the applicant which contributed to her injuries.
As a result of the incident, the applicant sustained bruising and swelling to her face and eyes, bleeding from her mouth and nose as well as severe pain in her kidneys and most other parts of her body. The injuries caused the applicant considerable pain and discomfort and she was unable to function normally for a long period of time. The applicant has a small lump under one of her eyes that sometimes causes pain when touched.
In the applicant’s victim impact statement dated 27 February 2008 she described suffering from nightmares and anxiety attacks as well as waking up from sleep feeling extremely anxious and terrified as a result of memories of the incident. According to the applicant, these episodes continued for almost six months after the incident. The applicant wrote, “… I feel sick if I witness any form of violence or perceived violence. I suffer from reoccurring migraines and depression and often feel the need to lock myself away from everyone.”
On 16 May 2007 the applicant saw a general practitioner, Dr André Dreyer, who referred her to a psychologist. On 23 May 2007, the psychologist, Paul Brady, wrote to Dr Dreyer stating that the applicant suffered with, and displayed classic symptoms of, a mild form of Post Traumatic Stress Disorder (PTSD).
Mr Brady held 12 counselling sessions with the applicant and wrote to Dr Dreyer again at the completion of the 12 sessions. He wrote that the applicant was progressing well with the strategies implemented by Mr Brady until she had a relapse. The relapse occurred at a weekend party, when she was confronted by a violent person and the shock of the event triggered many of her symptoms. Mr Brady continued to counsel the applicant. In his letter to Dr Dreyer, he wrote: “… I do believe the counselling was extremely beneficial preventing [the applicant] from developing long term Post Trauma Stress Disorder.”
On 2 September 2009, the applicant was interviewed by Dr Nial McLaren, a psychiatrist. Dr McLaren wrote a report dated 2 September 2009. During the interview, the applicant told Dr McLaren that in general, she feels “tired” and described her mood as “mixed”, which for her meant “mixed emotions”.
The applicant told Dr McLaren that she feels low and miserable half the time and this occurs three to four times a day, usually lasting around ten minutes. Dr McLaren wrote that when describing her bouts of unhappiness, the applicant replied: “I get anxiety attacks”, but that the bouts of unhappiness are “not too bad, controllable”. In Dr McLaren’s opinion, the applicant did not present any consistent somatic symptoms of anxiety, except that her stomach churned at times.
In Dr McLaren’s opinion, the applicant did not show any consistent signs of a clinically significant psychiatric disorder at the time he interviewed her. Dr McLaren wrote:
“There is some evidence of a mild anxiety state and very occasional bouts of unhappiness but this appears to be primarily personality-based and responsive to the current environment.”
…
“It is not possible to attribute her present, personality-based anxiety symptoms to the incident. At most, one could say that her social concerns have been exacerbated to a small extent by the assault.
“She appears to have had no more than a transient reaction to the assault…”
…
“Her mental symptoms appear to have settled within the order of months of the incident. It appears that, since May 2007, she has had further trouble which would serve to exacerbate her symptoms.
She does not require further counselling or treatment relating to the assault itself.”
The respondent is liable for her “direct and material contribution”[1] to the applicant’s injuries. It is not unreasonable in the circumstances to assess that the respondent and Ms Smith contributed equally to the applicant’s injuries.
[1] Section 26(6)(a) of the Act.
I assess compensation attributable to the respondent, in accordance with the Compensation Table which is Schedule 1 to the Act as follows:-
Item 1 – bruising / lacerations (minor) 2% $1,500.00
Item 32 – mental or nervous shock (minor) 5% $3,750.00TOTAL $5,250.00
I order that the respondent pay to the applicant the sum of $5,250.00 by way of criminal compensation.
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