Goodwin v Whittaker

[2009] QDC 167

[2009] QDC 167

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 1517 of 2009

VICKY OLIVE GOODWIN                  Applicant

and

MAX WILLIAM WHITTAKER                Respondent

BRISBANE

..DATE 10/06/2009

ORDER

HIS HONOUR:  This is an application for criminal compensation to be assessed for the applicant as a result of a personal offence committed by the respondent upon the applicant.  The personal offence that was committed by the respondent upon the applicant was the offence of wounding.  The offence occurred on the 27th of February 2006.  The applicant, with her partner, were travelling from Caboolture to Donnybrook.

They  came upon the respondent who was also driving in the area.  Both vehicles stopped and there was a confrontation.  The confrontation was about an alleged claim by the respondent that the applicant's partner owed him money.  A physical fight occurred between the applicant's partner and the respondent.  In that fight the respondent drew a knife and caused serious injuries to the applicant's partner.  The applicant was also stabbed by the respondent causing her wounds to her abdomen and leaving her with scarring.

The report of Dr Hughes, from the Princess Alexandra Hospital, states that upon examination the following injuries were noted:

1. 15mm laceration in the anterior auxiliary line midway between the costal margin and anterior superior iliac spine on the right side;
2. right little finger and middle finger superficial laceration and abrasions;
3. anterior abdominal wall injury with all miopono neurotic layers divided, exposing the iliac crest and abutting but not penetrating the peritoneum.

The report indicates the applicant was treated for the injuries principally to exclude peritoneal penetration.  This was achieved by performing a laparoscopy, a Yates drain was inserted down the wound tract and the anterior abdominal wall repaired on either side of the drain.  The doctor confirms the injury would amount to wounding for the purposes of the Criminal Code.  The respondent has been convicted of this offence and sentenced.

The applicant has been seen by Dr Stoker, a psychologist.  He notes that in the applicant's past she has suffered from post-traumatic stress disorder because of sexual abuse unrelated to the subject incident.  Nevertheless, he is of the opinion as a consequence of the subject incident and the sexual abuse as a child the applicant is suffering from post-traumatic stress disorder.  He noted though that, notwithstanding the sexual abuse as a child, her emotional health had improved somewhat over the years.  However, the subject incident exacerbated her post-traumatic stress disorder symptomatology.

He also noted she had a cannabis dependency disorder.  Mr Stoker also noted that her psychological health has improved as a result of a new relationship she has formed, counselling she has received, and work and the reduction in her drug usage.  She is leading a more circumscribed lifestyle.  However, he noted that she was self-conscious because of the scarring and will not wear a bikini.  He noted her relationship to her then-partner has ceased and she has commenced a new relationship.

He considers she would benefit from counselling to improve her emotional health.  In his opinion, the applicant has suffered a moderate degree of mental and nervous shock.  In the applicant's affidavit she states that when she was released from hospital she suffered from panic attacks and severe anxiety.  She became more introverted, she was unable to return to her previous employment because she was no longer outgoing as was required for her type of work.

The stab wound itself has not caused her ongoing pain but it has left a significant scarring which has caused her to become extremely self-conscious.  She would not wear a bikini again.  She does not exercise any more and her body shape has changed as a result.  She also suffered nightmares, but these have diminished over time. 

I am satisfied the respondent has been given notice of the application and that I can proceed to assess the compensation. I am also conscious that on an application of this kind the compensation awarded 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. Further, the maximum amount of compensation is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness. See subsections 3 and 4 of section 22 of the Criminal Offence Victims Act 1995.

An issue of causation arises because of the pre-existing condition of the applicant relating to her sexual abuse as a child.  I am satisfied that the incident, the subject of this application materially contributed to her post-traumatic stress disorder and, therefore, she is entitled to compensation for that post-traumatic stress disorder.  If it were not for the sexual abuse component, I would have assessed the applicant's compensation at 25% under item 33; however, taking into account the pre-existing condition I assess the applicant's compensation for mental and nervous shock moderate at 20%, which is a sum of $15,000.

I also assess the applicant's compensation under stab wound moderate, item 25, at 16%, which is a sum of $12,000.  Further I assess the applicant's compensation under item 27, bodily scarring minor/moderate at 10%, which is a sum of $7,500. 

I do not consider there is double compensation in allowing the applicant compensation for the stab wound and for bodily scarring even though the stab wound has produced bodily scarring.  I consider they are both separate injuries and should be treated separately and compensated separately.  The schedule allows for bodily scarring which must occur presumably from a number of circumstances, one being a stab wound. 

The total, therefore, I order the respondent to pay the applicant is the sum of $34,500.

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