Webster v Perillo

[2004] QDC 421

DISTRICT COURT OF QUEENSLAND

CITATION:

Webster v Perillo [2004] QDC 421

PARTIES:

GEOFF ROBERT WEBSTER
(Applicant)

v

BRUNO ANDREA PERILLO
(Respondent)

FILE NO/S:

2456/04

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

15 October 2004

DELIVERED AT:

Brisbane

HEARING DATE:

13 October 2004

JUDGE:

Tutt DCJ

ORDER:

That the respondent pay compensation to the applicant in the sum of $11,250 and I make no order as to costs in accordance with s 31 of the Act.

CATCHWORDS:

Criminal compensation – serious assault – mental or nervous shock.

Criminal Offence Victims Act 1995 (Qld) Part 3.

Ferguson v Kazakoff [2000] QSC 156.

Ross Kulmanis v Phillip John Murant (unreported District Court Brisbane, 6 March 2001, Boulton DCJ)

SOLICITORS:

Gilshenan and Luton Lawyers for the applicant.
No appearance was made by the respondent.

Introduction

1. The applicant, Geoff Robert Webster, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged mental or nervous shock he sustained on or about 11 August 2002 arising out of the criminal conduct of the respondent, Bruno Perillo, who was convicted by this court at Southport on 15 January 2004 for assaulting the said applicant.  An order for substituted service on the respondent of the application and supporting material was made by this court on 30 August 2004 the terms of which were carried out on behalf of the applicant as appears from the affidavit with exhibits of Lena Maree Gatti filed by leave on 13 October 2004.  The respondent made no appearance at the hearing.

1. The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

(a)        the affidavit with exhibits of the applicant sworn 2 July 2004 and filed 14 July 2004;

(b)        the affidavit with exhibits of Diana Cameron, psychologist, sworn 8 July 2004 and filed 14 July 2004; and

(c)        the affidavit of Peter Matthew Johns, solicitor, sworn 13 July 2004 and filed 14 July 2004.

Facts

1. The material shows that the applicant was assaulted by the respondent in circumstances where, subsequent to the respondent’s vehicle coming to a stop after a collision with a service station sign following a police pursuit of the respondent’s vehicle, the respondent pointed “a long dark shaped instrument” which looked like a gun towards the applicant’s partner and then towards the applicant with the applicant’s partner calling out that the respondent had “a gun”. 

1. The applicant states that he felt “immediate terror” and that he drew his service firearm “… and directed it at the respondent”. 

1. The respondent lent out of his vehicle and continued to point the object in the applicant’s direction despite the respondent being called upon to “drop the gun”.  The respondent laughed at the applicant and shortly after said the words “bang bang” at which the applicant then realised that the object may not have been a real firearm and approached the respondent to restrain and arrest him.

1. The applicant deposes to the fact that the incident “… has had significant ongoing effects on my personal and professional life”. 

1. He further swears as to the following effects which the incident had on him:-

·     he was in extreme fear;

·     for some months he “… kept ruminating on what might have been”; and the fact that he came “… very close to shooting the respondent …”;

·     difficulty in sleeping;

·     feeling irritable and stressed;

·     adverse effects on his personal relationships and work;

·     the necessity to seek counselling.

Mental and Nervous Shock – Causation

1. It is now well accepted that to establish a “mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “(an) injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event” as distinct from “… fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraphs [15, [17] and [21] respectively.

1. A psychological assessment of the applicant was made by Dr Diana Cameron, clinical and neuro psychologist on 2 March 2004 (one year and seven months post incident) and was subsequently detailed in a report dated 6 April 2004[1].

   [1]Exhibit “DC-1” to the affidavit of Diana Cameron

1. Dr Cameron recounts in her report the applicant’s “symptoms/complaints” and forms the opinion that the applicant’s diagnosis is that of “psychological condition of mental and nervous shock (moderate)” and that he “specifically … suffered a psychiatric condition of post traumatic stress disorder (PTSD) (moderate severity)”.

1. Dr Cameron further concluded that the applicant “… was moderately deterred in the ease of going about his work and daily living for some months” but that:

“His PTSD condition arising from this event was acute as opposed to chronic which is to say his symptoms lasted less than three months.  His symptoms have in the main since abated.”

She further concluded that the applicant “… may benefit from psychological counselling for minor residual trauma effects left him by this event”. 

1. There is no evidence that the applicant suffered from any prior psychiatric condition nor that any other factor was relevant to Dr Cameron’s diagnosis.

1. I therefore find that the incident which occurred on 11 August 2002 caused the onset of the condition the subject of this claim and there is no question of the applicant’s behaviour in any way contributing to the condition within the terms of s25(7) of the Act.

Category of Injury

1. It is submitted that the applicant’s claim should be assessed under Item 32 of Schedule 1 of the Act namely:

“32.  Mental or Nervous Shock (Moderate) (10%-20% of Scheme
Maximum)”

         

1. It is clear from the material before me that the applicant has not suffered any long term permanent disability from the effects of the incident in question as both the applicant and Dr Cameron confirm that the applicant’s symptoms “… have largely abated”. 

1. I was referred to an unreported decision of this court of Ross Kulmanis v Phillip John Murant (unreported judgment, 6 March 2001, Boulton DCJ) as providing some assistance to me in my assessment of compensation in this claim.  While the decision is of general assistance it is clearly distinguishable from the current application before me in that the applicant in that decision had prolonged symptoms which remained for some two years post incident requiring continuing treatment at that time with the possibility of future hospitalisation.

1. Taking all relevant matters into account I am of the opinion that it would be reasonable to assess the applicant’s compensation in this matter on the basis that it is in the middle range of Item 32 and I therefore assess the quantum of the applicant’s compensation in the sum of $11,250 representing 15 per cent of the Scheme maximum.

1. I therefore order that the respondent pay compensation to the applicant in the sum of $11,250 and I make no order as to costs in accordance with s 31 of the Act.