Ryan v Malcolm

[2004] QDC 417

DISTRICT COURT OF QUEENSLAND

CITATION:

Ryan v Malcolm [2004] QDC 417

PARTIES:

PAMELA ANN RYAN
Applicant
v
GEORGE ANDREW MALCOLM
Respondent

FILE NO:

D19 of 2004

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Ipswich

DELIVERED ON:

15/10/04

DELIVERED AT:

Ipswich

HEARING DATE:

18/6/04

JUDGE:

Richards DCJ

ORDER:

The respondent pay the applicant the sum of $18,000 by way of compensation for injuries caused in September of 2002

CATCHWORDS:

Criminal compensation – causation  - nervous and mental shock

Riddle v Coffey QCA 265, 6/ 9 /02

COUNSEL:

Mr A West for the applicant

Mr J Fenton for the Crown Solicitor

SOLICITORS:

Dale & Fallu for the applicant
The respondent appeared for himself
Crown Solicitor appeared as friend of the Court

1. On 5 February 2003 George Malcolm pleaded guilty to wilful damage and assault occasioning bodily harm. Pamela Ryan has brought an application for criminal compensation in relation to these offences. Mr Malcolm who appeared on this application is illiterate and as such the Crown was served and has appeared in relation to this application. 

1. Mr Malcolm had previously been in a defacto relationship with Pamela Ryan.

1. On 30^th September 2002 he drove and deliberately damaged her car, writing it off.  He then went to her house, punched her in the face, threatened to kill her, dragged her into the house and threw her on her bed.  This was done in front of her children.  As a result of this behaviour, Mrs Ryan ended up with significant injuries including bruising to the face, forehead, arms and wrists and a lump on the right side of her forehead which was painful over a number of months. She also claims that as a result of the assault she has developed carpel tunnel syndrome in both wrists.

1. The relationship that she had with the Malcolm was one marked by significant domestic violence over a long period of time.  She has suffered significant emotional trauma as a result of both the relationship and the incident in question. 

1. She was seen by Mr Topping, a psychologist, for the purposes of this application.  He indicated that she suffered stress as a result of the incident which resulted in her having difficulty leaving her house, losing weight, having difficulty sleeping at night and being constantly vigilant against Malcolm’s return.  She has developed a mistrust of men and has also had trouble with her children as a result of the incident.  It is said that she suffers from post traumatic stress disorder in the moderate to severe range.  Future care will cost up to $8,500 for psychological treatment alone.

1. Due to the background of previous domestic violence it is necessary to consider whether the post traumatic stress disorder from which Ryan suffers is caused by this incident or by the domestic violence. When cross-examined by Mr Fenton, Mr Topping indicated that he was not aware of the domestic violence in the relationship.  He was told by Ryan that she suffered at Malcolm’s hands because of his controlling behaviour but she did not mention significant domestic violence. 

1. Mr Topping said that he was unaware of any actual violence over the three years of the relationship but he was aware that she was very unhappy.  He said he viewed the post traumatic stress disorder as a global matter and that it was very difficult to isolate her stress levels up until 30 September 2002. However given the violence involved in this episode it is fair to infer that the events of 30 September 2002 did contribute in a substantial way to her mental state.

1. Mr Topping  gave evidence that now that she has left the Ipswich area and dealt with stresses in that way she is much improved.

1. There is no doubt that Ms Ryan did suffer significant injuries.  She says that a lot of her symptoms have been brought on as a result of this attack and has given that evidence under oath. 

1. In my view she is entitled to an award for compensation. 

1. She did not contribute to her injuries in any way. 

1. In relation to the bruising and/or facial disfigurement, there should be one global award made for the bruising and the lump to Ms Ryan’s forehead. It is important to ensure that there is no duplication of compensation for similar injuries [1]. An award for the bruising should be made under item 2 of the compensation table at 4% of the Scheme maximum namely $3,000.

   [1] Riddle v Coffey QCA 265,6/9/02 per McMurdo P

1. In relation to the nervous shock and mental disorder there should be an award made under Item 32 (Nervous Shock Moderate) in the sum of 20% of the Scheme maximum namely, $15,000.

1. In relation to Ms Ryan’s claim for injury to her wrists namely carpel tunnel syndrome, there is very little evidence that the carpel tunnel syndrome is connected to the injuries.  Mr Topping says that there is a connection, however, he is not a medical practitioner and acts simply on the information supplied by Ms Ryan.  She was seen by Dr Orford on 2 December 2002, a date well removed from the actual date of the incident (30 September 2002).  There was a provisional diagnosis made of carpel tunnel syndrome but there was no determination made as to the relationship between her disability and the assault.  In those circumstances there is insufficient evidence of any causal connection between the carpel tunnel syndrome and the assault and therefore no award in that regard can be made.

ORDER

I order that the respondent pay the applicant the sum of $18,000 by way of compensation for injuries caused in September of 2002.