Zaicov v Jones

[2000] QSC 338

THE SUPREME COURT  [2000] QSC 338

OF QUEENSLAND

BRISBANE  No. 5840 of 2000

IN THE MATTER

STEPHEN PETER ZAICOV

First Applicant

AND:

RICHARD MARK McKENNA

Second Applicant

AND:

SEAN PATRICK JONES

Respondent

REASONS FOR JUDGMENT

B.W. Ambrose J.

Delivered the second day of October 2000

CATCHWORDS:CRIMINAL – COMPENSATION – extent of contribution by applicants to their injuries – when assessing amount for compensation if the addition of percentages for injuries exceeds 100% then the reduction for contribution is from the scheme maximum and not a greater sum.      

Criminal Offence Victims’ Act (Qld) 1995

District Courts Act (Qld) 1967-1972

Workers’ Compensation Act (Qld) 1916-1983

Seymour v. Lackery [1976] Qd R 277

Unsworth v. Commissioner of Railways (1949) 101 CLR 73

Kelly v. Stockport Corporation [1949] 1 ALL E.R. 893

R. v. Ferguson Ex Parte Matthews [1988] 2 Qd R 282

Counsel:  Mr A J Kimmins for the applicants

No appearance for or on behalf of the respondent

Solicitors:  Price & Roobottom for the applicants

No appearance for or on behalf of the respondent

Hearing  Dates:           24 July 2000 & 10 August 2000

1. This is an application under the Criminal Offence Victims’ Act (Qld) 1995 by each of two men who on 9 November 1996 were shot by the respondent at a motorcycle display held at the Tugun Rugby League Football Club. 

1. Each of the applicants was a member of a motorcycle club known as “The Black Ulans”. 

1. The respondent was charged with the attempted murder of each applicant.  In the alternative he was charged with doing grievous bodily harm to each with intent.

1. As a matter of law it was open to the jury to convict him of doing to each applicant grievous bodily harm simpliciter. 

1. There was no issue at the trial that each applicant had been caused grievous bodily harm as a result of the penetration of his body by a bullet fired by the respondent.  Only a couple of seconds elapsed between the firing of each bullet. 

1. At the trial the respondent relied by way of defence upon his lack of a specific intent to kill or to do grievous bodily harm to the applicant.  More to the point however, he relied upon self-defence as a justification for the injury he inflicted upon them. 

1. After a long trial the jury acquitted the respondent upon the charges of attempted murder and of doing grievous bodily harm with intent.

1. The jury however returned a verdict of guilty of doing to each applicant grievous bodily harm simpliciter. 

1. To negate self-defence the Crown needed to disprove either:-

1.          That at the time he fired a shot into the body of each applicant, that applicant was threatening to kill him or to do very serious injury to him; or

2.          That he reasonably believed that it was only by shooting each applicant in the body that he could preserve himself against death or grievous bodily harm at his hands (or perhaps feet). 

1. It was the case of the Crown that based upon the evidence given by both applicants the respondent was motivated to shoot each because of the involvement of his former de facto wife with the applicant McKenna and because shortly before the shooting another member of the Black Ulan Motorcycle Club had without warning assaulted him causing a severe injury to his eye.  It was the case for the respondent however that in the course of a custody dispute with his former de facto wife he had sworn an affidavit for use in those proceedings outlining the criminal activities of the applicant McKenna which had been tabled at a meeting of the Black Ulans  motorcycle club which as a consequence had resolved to have him killed or seriously injured and it had been agreed that “a ticket” for $100,000.00 to achieve this result would be funded by that motorcycle club.  It was the case for the respondent that on a number of occasions efforts had been made to kill or injure him and that requests for police protection had not been very effective and as a consequence for some time prior to the shooting he had carried a revolver with him for self-protection. 

1. It was the case for the respondent that he did not indeed intend to kill or cause grievous bodily harm to either of the applicants when he shot them.  It was his case that after receiving his eye injury at the hands of a member of the “Black Ulans” he was attempting to leave the football ground with his girlfriend, and that when they approached him he asked both applicants to stay away from him but they continued to advance upon him, one from either side, telling him that they were going to kill him and that he would never get away from the football grounds.  His case was that each approached him in an outflanking manoeuvre so that he was unable to watch each at the same time and when they continued to advance towards him he removed his revolver from a bag in which he was carrying it and when they were a few paces from him he shot each at about waist level not for any purpose other than to “stop” their further advance.  The jury may have concluded that he did not care whether or not they suffered grievous bodily harm as a result albeit that he did not intend that they do so.

1. Each of the applicants at that time was much heavier and much bigger than the respondent who was then suffering from the eye injury inflicted upon him shortly before by one of the members of their club.

1. It was contended for the Crown that a belief by the respondent that it was necessary to defend himself against death or grievous bodily at their hands harm to shoot each of the applicants almost simultaneously without first giving them a warning that he would shoot them if they continued to advance upon him threatening to do him injury was not reasonable.  It was contended really that while it may have been a reasonable belief by the respondent that it was necessary to shoot them if they disregarded such a warning after he had taken his revolver out, should they continue to advance upon him, to shoot without such a warning which they disregarded was not reasonable and he could not have believed it was.  The case for the respondent was that having regard to an aspect of their gang culture, that “Black Ulan colours never run” he did not believe that such a warning would have induced them to stop advancing upon him with the intention of killing him and that in any event they were so close to him by that stage that any delay would have put him to unacceptable risk of death or very serious physical injury. 

1. I do not propose to analyse in detail the evidence from persons present at the shooting.  It suffices to say that there was ample evidence to contradict the evidence given by each of the applicants that they were not threatening to kill the respondent but were merely walking in a direction that would happen to take each past the respondent at the same time on either side of where he was standing with his girlfriend with his back to a mobile bar.  One applicant said he was going to a toilet and the other said he was going towards a permanent bar in the football club clubhouse.  There was ample eyewitness evidence to support the case for self-defence insofar as that case involved the making of threats by the applicants to kill or seriously injure the respondent as they advanced towards him in an outflanking movement.  There was ample evidence to support the fact that he had reasonable fear that they were going to do him injury because of the threats they made again and again and their refusal at his request to cease advancing towards him making those threats. 

1. In my view the most likely explanation for the jury convicting the respondent on the charge of grievous bodily harm simpliciter was the fact that they were satisfied that it was unreasonable for him to peremptorily shoot each of the applicants with his revolver without first giving them an opportunity to cease approaching and threatening to kill him after he had produced his revolver and pointed it towards them.  Had he warned them of his intention to defend himself by shooting them to avoid injury or death and had they nevertheless continued to advance upon him continuing to make those threats in my view the jury may well have acquitted him also on the charge of doing to each applicant grievous bodily harm simpliciter.

1. On the facts in this case I am of the view that each of the applicants by his conduct contributed to his own injury.  In my judgment each embarked upon a joint enterprise of assaulting the respondent by approaching him in an outflanking manoeuvre while threatening to kill him when having regard to their size and experience in physical conflict they had a present ability to commence to carry out their threat within a couple of seconds.

1. In my view each of the applicants should be held responsible to the extent of 50% for the injury inflicted upon him by the respondent. 

1. At the time of his injury, the first applicant was 32 years of age.  The bullet causing him injury entered his left flank and exited his right flank.  He retained consciousness but was immediately paralysed and lost sensation in both legs.

1. He was taken to Tweed Heads Hospital where a laparotomy was performed to stabilise abdominal bleeding.  The bullet had penetrated his diaphragm without damaging his lungs.  It  had also penetrated his spleen.  He was taken to Gold Coast Hospital for intensive care and spinal care.  At Gold Coast Hospital, a second laparotomy was performed.  It was observed that there was bleeding from the left kidney and he underwent a left nephrectomy.  He underwent a yet further laparotomy.  Eventually an intercostal catheter was removed. 

1. There is no evidence as to any lasting effect upon him of the nephrectomy or the laparotomies.

1. He was eventually transferred to Princes Alexandra Hospital Spinal Unit.  It appears that the bullet had passed through his first lumbar vertebrae.  He was then paraplegic beneath the first lumbar segment.  He has made some recovery over the years but will spend most of his waking hours confined to a wheelchair for the rest of his life.  However, he has undertaken extensive rehabilitative treatment and has persevered with it.  At the moment, is able to walk a few hundred metres with the assistance of crutches and a basic orthotic.  He is also able to use a three wheel motor cycle and a modified salon motor vehicle.

1. He has suffered from pressure sores on both feet. 

1. It is unnecessary to analyse in more detail the various problems that he has had to cope with as a result of his paraplegia.  It is clear that he will have to cope with such problems for the rest of his life.  Those problems however are much less significant than those with which many persons suffering from paraplegia/tetraplegia must cope.

1. It is necessary to consider the consequences of his spinal injury because under the compensation table in Schedule 1 of the Criminal Offence Victims’ Act (Qld) 1995, the “maximum” entitlement to compensation for an injury resulting in paraplegia/tetraplegia is treated as 100% of the scheme maximum of $75,000.  Obviously, the percentage adopted in any specific case will involve comparison of the most debilitating injury defined in the category “Injury No. 34” in Schedule 1 with the least debilitating.

1. As a consequence of physical injury the first applicant also suffered a psychological/psychiatric reaction.  At the time of his injury the first applicant was a tall, very fit man with a weight of 120kgs.  As a consequence of his injury, he suffered an initial weight loss to 55kgs.  He then put on more weight which eventually reached 85kgs.  The weight loss was due to the loss of muscle mass over his whole body attributable to his paralysis and loss of muscle in the legs. 

1. He was also diagnosed as suffering from a mood disorder with significant depressive features and symptoms of anxiety.  As a consequence of his spinal injury, he lost his former sexual ability and became generally dependent to a significant extent upon his wife.

1. From time to time in the future he will require counselling and anti-depressant medication.  He currently takes drugs to control his anxiety and to permit him to sleep,  Should he and his wife decide to have children, this can be achieved only through fertility clinic assistance such as IVF.

1. On behalf of the first applicant, it is contended that his assessment should comprise three specified injuries:-

Injury No. 26 (gunshot wound) (severe) 15% to 40%  $30,000

(the maximum)

Injury No. 33 (mental/nervous shock) (severe) – 20% to 34%  $25,500

(the maximum)

Injury No. 34 (paraplegia/quadriplegia) – 100%  $75,000

(the maximum)

1. The difficulty I would have in adopting this approach is that to my mind it involves a degree of duplication. 

1. The first applicant suffered one gun shot wound.  Accepting that it was a severe one having regard to the harm it produced, if this were regarded as the only injury he suffered, undoubtedly the assessment would be at the top of the percentage range – 40% or $30,000.

1. However, a more appropriate way in my view to assess the injury would be to take the most serious consequence of the shooting which produced paraplegia in respect of which Item 34 of the compensation table provides for a maximum of 100% for that injury i.e. $75,000.

1. With respect to the suggested assessment of 34% - the maximum percentage rate prescribed in the table for Injury No. 33, - mental/nervous shock (severe), - one problem is that the mental nervous shock on the medical evidence results entirely from the paraplegia - in respect of which of course, the maximum percentage of 100% is sought.

1. The whole matter is complicated by the fact that the single shot also led to the loss of a kidney and to a couple of laparotomies.

1. The compensation table is silent with respect to internal injury.  Upon the evidence, the applicant suffered significant and indeed serious internal injury in addition to his paraplegia and mental/nervous shock.

1. The compensation table gives no indication of any percentage of the maximum attributable to such internal injury and I have difficulty in comparing the destruction of a kidney with any of the injuries specified in Schedule 1.

1. It is understandable therefore, that in respect of the internal injury apart from the paraplegia and the mental/nervous shock the first applicant should seek a percentage specified under Items 24, 25 or 26 being a gunshot wound.

1. I apply Item 26 (gun shot wound severe) to cover the internal injuries and assess this injury at 20%.

1. I also assess separately the mental or nervous shock resulting from the paraplegia suffered by the first applicant as a consequence of the bullet wound albeit on the material, it seems to be a condition directly related to the paraplegia rather than to any separate brain or head injury.  I categorise it under Item 33 as severe and apply a percentage of 20%.

1. With respect to the paraplegia, the plaintiff’s condition is by no means at the upper end of the range of serious disabling cases of paraplegia/quadriplegia to come before the Courts and I apply a percentage rate of 70%.

1. Adopting this approach the first applicant would contend that there should be an assessment of 110% of the maximum compensation of $75,000 which would amount to $82,500.

1. If that figure were then reduced by 50% by reason of the first applicant’s contribution to his own injury it would result in an order for compensation in the sum of $41,250.

1. On the other hand, if 50% of the scheme maximum of $75,000 were recovered by the applicant it would result in an order for compensation in the sum of $37,500.

1. Because this point was argued on behalf of both applicants I will deal with this question after I have assessed percentage terms the entitlement of the second applicant, Richard McKenna, to compensation having regard to the injury he suffered. 

1. The second applicant, upon examination showed a bullet entry wound in his left lower back and an exit wound in his right lower back.  He suffered a comminuted fracture of his third lumbar vertebra.  He suffered pain but his wounds healed.  He was left with marked soft tissue damage and for some time suffered severe lower back pain, right sciatica and a numbness in his right calf.  He had a diminished range of movement and decreased sensation in his left leg.  He was treated for pain and confined to bed.  He needed crutches for mobility and received drugs including anti-spasmodics to relieve pain and facilitate mobility.  He developed right sciatica with paresis in his left leg.

1. He suffers constantly from lower back pain at the present time.  It limits his mobility and affects his daily living.  His future prognosis is not good because of soft tissue and bone damage he suffered in the gunshot wound.  To stabilise his condition he may require major surgery at some time in the future.

1. As a consequence of his injury (albeit not as severe as the injury inflicted on the first applicant), the second applicant has suffered from a severe and chronic post-traumatic distress disorder for a couple of years.  In its present state it is described as a generalised anxiety disorder.  This is likely to be a chronic condition.  It appears on the evidence that he will need psychiatric treatment with a combination of anti-depressant and anti-anxiety medication.  This medication will be in addition to that needed to control his pain level.  He will probably have to obtain this treatment in a pain clinic where he will have the advantage of psychiatric/psychological/physio-therapy treatment etc.

1. Prior to his injury, the second applicant was a strong able man who enjoyed physical activities.  His self esteem was based upon his perception of himself as a physically strong, active person.  His disability which has greatly reduced his physical capacity has had a significant psychological impact on him and having regard to his personality, he finds it difficult to cope with this condition.

1. On the medical evidence, the second applicant needs urgent psychiatric consultant treatment and medication.

1. On behalf of the second applicant it is contended that his injuries may be categorised as follows:-

Injury No. 23 – back injury (severe) – 40%  $30,000

Injury No. 26 – gunshot wound (severe) – 40%  $30,000

Injury No. 33 – mental/nervous shock (severe) – 34%  $25,000

Total  $85,000

1. Again, it seems to me this approach involves a degree of duplication.  The back injury (severe) itself is attributable to the gunshot wound (severe) which could itself categorised as severe only because of the resulting severe back injury.

1. If the second applicant’s contentions be accepted then after allowance for contribution to his own injury he would receive 50% of $85,500 – i.e. $42,750.

1. On the other hand, if he received 50% of the maximum allowance of $75,000 he would receive $37,500.

1. I assess his back injury under Injury No. 23 as a severe back injury at 30%.

1. I assess his mental/nervous shock under Injury No. 23 as severe at 25%.

1. I assess the various other sequelae to his wounding to which I have referred including the soft tissue and bone injury which may lead to future operative treatment under Injury No. 26 as a severe gun shot wound, at 20%.

1. The total assessment of compensation for the second applicant item is 75% of the maximum payable which is $56,250.  That sum reduced for his contribution to his injury by 50% is $28,125.

1. I will turn now to address the argument advanced on behalf of the applicants that the 50% contribution is not to be of the scheme maximum of $75,000 but rather based upon the total of the percentage rates of the maximum of $75,000 provided for in the various categories of injuries to which I have referred so that the scheme maximum of $75,000 simply limits the amount which may be ordered to be paid should that total exceed 100%.  Upon the assessment made it is necessary to consider this argument only with respect to the first applicant’s claim.

1. If the argument for the applicants be accepted of course the first applicant should receive an order for a larger amount of compensation than he would otherwise do ($37,500).

1. The contention of counsel for the applicants was that:-

“It is to be noted that the scheme maximum is $75,000.  It is clear that the Act provides for a judge to assess compensation under the various heads specified in the compensation table.  Once the assessment has been completed it is to be noted that a Court cannot make an order that exceeds the scheme maximum of $75,000.  Thus, the Act allows for a judge to assess the total amount of damages under the compensation table and then order the respondent to pay an amount that does not exceed the scheme maximum.”

1. This contention is said to find support in Seymour v. Lackery [1976] Qd R 277 in which it was held that in a personal injury claim a District Court judge was entitled to assess damages at common law without regard to the $10,000 limitation on jurisdiction contained under the District Courts Act (Qld) 1967-1972 at that time and then to reduce the assessment for the plaintiff’s contribution and award damages up to the amount of the jurisdictional limitation of $10,000. It is said that s 25(3) should be construed to have the same effect.

1. It is contended on behalf of the applicants that s 25(3) which limits the payment of a $75,000 “scheme maximum” under s 25(2) of the Criminal Offence Victims’ Act Qld 1995 (and Regulation 2) is analogous to the jurisdictional limitation upon the District Court considered by the Full Court in Seymour v. Lackery.  I might add that in that case, the Full Court adopted the approach in Unsworth v. Commissioner for Railways (1958) 101 CLR 73 in preference to that taken in Kelly v. Stockport Corporation [1949] 1 ALL E.R. 893.  The Court of Appeal in England came to a contrary conclusion upon its construction of relevant analogous legislation in England.  However, the Full Court concluded that it was obliged to adopt the approach in Unsworth v. Commissioner for Railways.  It is unnecessary for me to analyse the arguments advanced in Seymour v. Lackery because I regard myself as bound to follow that decision if applicable to this case.

1. However, construction of the apportionment legislation considered in the light of the statutory limitation of jurisdiction in Seymour v. Lackery does not, in my view, do more than indicate one possible approach to the construction of subsections 25(1) and (7) advanced on behalf of the applicants in this case.

1. S 22 of the Act provides:-

22     (1)     A right, entitlement or remedy under this part is in addition to, does not limit, and is not in substitution for, any right, entitlement or remedy under common law or otherwise.

(2)     ---

(3)     Compensation provided to an applicant under this part is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled  under common law or otherwise.

(4)     The maximum amount of compensation provided under this part is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness.

1. S 25 of the Act provides:-

25     (1)     In making a compensation order a Court is limited to ordering the payment of an amount decided under this section.

(2)     A compensation order may only order the payment to the applicant of a total amount of not more than the prescribed amount (the “scheme maximum”).

(3)     If more than one amount is payable under subsections 4 to 6, the amounts must be added together and if the total is more than the scheme maximum only the scheme maximum may be ordered to be paid.

(4)     In deciding the amount that should be ordered to be paid for an injury specified on the compensation table, the Court is limited to making an order for:

(a)     if there is only 1 percentage listed opposite the injury – an amount up to amount that is the listed percentage of the scheme maximum; or

(b)     if there is range of percentages listed opposite the injury – an amount that is within the listed range of percentages of the scheme maximum.

(5)     In deciding the amount that should be ordered to be paid for an injury specified under a regulation the Court is limited to making an order for the prescribed amount.

(6)     ---

(7)     In deciding whether an amount or what amount should be ordered to be paid for an injury the Court must have regard to everything relevant including for example any behaviour of the applicant that directly or indirectly contributed to injury.

(8)     A decision on the amount that should be ordered to be paid under a compensation order:

(a)     does not involve applying principles used to decide common law damages for personal injuries; and

(b)     is to be decided by applying the principles mentioned in s 22(3) and (4).

1. In R. v. Ferguson Ex Parte Matthews [1998] 2 Qd R 282 Mackenzie J considered an application for compensation under s 663B of the Criminal Code where the question of contribution arose.

1. Under s 663B(2) it was provided inter alia:-

“(2)     In determining whether or not to make an order under subsection (1) of this section and in determining the amount of any order the Court shall have regard to any behaviour of the person aggrieved which directly or indirectly contributed to the injury suffered by him and to such other circumstances as it considers relevant …”

1. In construing that section Mackenzie J observed at 283:-

“There is no guidance on what is appropriate but having regard to all the circumstances I am of the opinion that I should reduce the amount to $47,500. That is a reduction rounded off of one-third. That approach proceeds on the basis that what s 663B requires is to reduce the maximum amount payable by a portion that is appropriate in the particular circumstances of the case, not to assess the full amount of damages reduce that by the contribution factor awarding the prescribed amount if the sum after reduction remains above the prescribed amount.”

1. For the applicants it is contended that this point was not  argued in that case and that Seymour v. Lackery was not drawn to the attention of Mackenzie J and that therefore the judgment ought be regarded as having been delivered per incuriam.

1. Under s 663A “prescribed amount” was defined (subject to particular reference in s 663AA) to be the amount for the time being prescribed in s 14(1)(C)(a) as varied from time to time of the Workers’ Compensation Act (Qld) 1916–1983.

1. In my view, the approach for which the applicants contend is inconsistent with the provisions of s 26, in particular s 26(2)(a)of the Act which provide inter alia:-

26(1)       The purpose of this section is to ensure that, for applications, harm that substantially should be treated as a single state if injury is treated as a single injury, even though it may consist of more than one injury or be caused by more than one incident.

(2)      The objective is to ensure that the way in which incidents of personal offences happen or personal offences are prosecuted, does not cause -

(a)       inequity of treatment between applicants; or

(b)      an unjustifiable multiplicity of applications to the State under division 3 about substantially the same harm.

(3)      Subject to subsections (7) and (8), only one compensation order may be made in favour of an applicant because of -

(a)       injury suffered from a substantially single incident, whether consisting of one or more than one personal offence; or

(b)      ---

1. Division 3 of the Act relates inter alia to payment by the State of the whole or part of an amount ordered to be paid to an applicant under s 25(2).  An application under this division is made to and processed by The Minister under s 36.

1. I infer that it is likely that application will be made for  payment of the whole or part of the amount of compensation ordered to be paid by the respondent to the first applicant out of the consolidated fund.

1. It is clear, in my view from the terms of s 26(1) that even though the first applicant suffered more than one category of injury as a consequence of being shot once through or in the vicinity of his spinal processes, nevertheless, the harm of various kinds which resulted from that single shot, should be “treated as a single injury even though it may consist of more than one injury”.

1. I have already particularised the injuries in respect of which the first applicant sought and has obtained a separate assessment of compensation in accordance with the Compensation Table in Schedule 1.  I will not restate those matters in applying

s 25(7) of the Act.

1. In my view, upon a proper application of subsections 25 and 26 of the Criminal Offence Victims’ Act (Qld) 1995, of the first applicant must be treated as having suffered a single injury which resulted from the penetration of his body by the bullet that caused him harm of various kinds.  He is entitled to have recourse to the consolidated fund under Division 3 of the Act for payment of all or part of the compensation ordered to be paid in respect of that injury.

1. S 25(7) requires a Court to have regard to any direct or indirect contribution on the part of an applicant in determining whether any or what amount should be ordered to be paid for an injury inflicted on him.  The obligation of the State to pay many if not most amounts of compensation ordered, out of the consolidated fund is to my mind a factor which supports a construction of s 25(7) which requires a reduction of the scheme maximum of $75,000 in accordance with the requirements of s 25(2) in the event that the total percentage assessment of injuries under the Compensation Table in Schedule 1 exceeds 100%.  To accept the construction for which the first applicant contends would result in persons, without any contribution on their part, suffering injury which applying the scale in Schedule 1 might total $150,000 being entitled to an order for only the scheme maximum of  $75,000 while at other persons whose conduct had to the extent of 50% contributed to an identical injury would recover the same maximum of $75,000.  In my view, such a legislative intent ought not be lightly imputed because it is unlikely that payment of the same amount of compensation from the Consolidated Fund to claimants irrespective of their contribution to their injury would be intended – vide s 26(2)(a) of the Act.

1. In my view, a determination under s 25(7) does not involve an approach similar to that in a determination of contributory negligence in a civil action a Court with a limited monetary jurisdiction – vide s 25(8).

1. Under s 25(7), it is when deciding whether any or what amount of the scheme maximum of $75.000 should be ordered that a Court is required to consider behaviour of an applicant which has contributed to his injury.

1. The construction advanced on behalf of the first applicant is however arguable.

1. I am unpersuaded however that the decision of Mackenzie J in R v Ferguson Ex parte Matthews (supra) was given per incuriam.  I propose therefore to rely upon that decision as supporting my rejection of the first applicant’s contentions on this point.

1. I order that the respondent pay to the applicant Stephen Peter Zaicov compensation in the sum of $37,500.

1. I order that the respondent pay to the applicant Richard Mark McKenna compensation in the sum of $28,125.