Zografos v Sweeper

[2006] QDC 359

DISTRICT COURT OF QUEENSLAND

CITATION:

Zografos v Sweeper [2006] QDC 359

PARTIES:

PANDELIS ZOGRAFOS

(Applicant)

v

KAREN WENDY SWEEPER
(Respondent)

FILE NO/S:

D50 of 2006

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Beenleigh

DELIVERED ON:

11 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

15 August 2006

JUDGE:

Tutt DCJ

ORDER:

The respondent pay to the applicant the sum of $12,750.00 by way of compensation for injuries caused by the respondent to the applicant for which the respondent was convicted by the District Court at Beenleigh on 1 August 2005.

CATCHWORDS:

Criminal compensation – serious assault – biting of applicant police officer – mental or nervous shock.

Criminal Offence Victims Act 1995 ss. 24, 25(6) and (7) and 31.

Ferguson v Kazakoff [2000] QSC 156.

SOLICITORS:

Mr D Hutchings for Gilshenan & Luton Lawyers for the applicant.

No appearance for the respondent.

Introduction

1. The applicant, Pandelis Zografos, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for alleged bodily injury he sustained arising out of the criminal conduct of the respondent, Karen Wendy Sweeper, who was convicted by the District Court at Beenleigh on 1 August 2005 for the offence of serious assault to the applicant committed on 11 September 2004.

1. The respondent although being served with the application 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 8 May 2006 and filed in this court on 17 May 2006;

(b)        the affidavit with exhibits of Lena Maree Gatti, paralegal, sworn 16 May 2006 and filed in this court on 17 May 2006; and

(c)        the affidavit with exhibits of Axel Estensen, consultant psychiatrist, sworn 12 May 2006 and filed in this court on 17 May 2006.

Facts

1. The applicant who is a police officer was acting in the course of his employment on 11 September 2004 at Drewvale, Queensland when he was bitten by the respondent on his left wrist as a result of which he experienced “…exceptional pain and asked her to remove her mouth however she continued to bite down harder”[1].  Ultimately the respondent released her mouth from the applicant’s wrist and was then taken to the Beenleigh watch house

   [1]           Paragraph 4 of the applicant’s affidavit.

Injuries

1. The applicant’s injuries are described in the Logan Hospital records of 12 September 2004 in the following terms:

“ …Police officer bitten by client on wrist tiny shallow break in skin and large area erythema – Hep B vaccinated – Blood taken for HIV, Hep B and C – the prisoner will have blood taken – will F/U with GP.”[2]

[2]           Exhibit “LMG-3” to the affidavit of Lena Maree Gatti.

1. The applicant was also examined by Axel Estensen, consultant psychiatrist, on 19 January 2006 who diagnosed him as suffering from an “adjustment disorder with anxiety symptoms (chronic)”. 

1. In addition to any physical injury the applicant also claims for psychological injury arising out of the attack on him by the respondent.

1. Dr Estensen describes the applicant’s current symptoms in the following terms:

“Currently his Adjustment Disorder with anxiety symptoms (chronic) is consistent with “mental or nervous shock (mild)” from the Schedule 1 of the Criminal Defence Victims Act 1995. Mr Zografos reported a range of symptoms which continue to cause him distress and disruption to his pre-incident life. However he has been able to continue to function as an effective police officer, gain promotion, study and re-establish his family in a different locale.”[3]

[3]           Page 11 of the report exhibited to the affidavit of Axel Estensen.

Mental or Nervous Shock

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.

Applicant’s Contribution

1. In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

1. I have referred to the circumstances of the incident in paragraph [4] above and I am of the opinion that the applicant’s behaviour at the relevant time did not either directly of indirectly contribute to the injury complained of by him.

Categories of Injuries

1. I find that the applicant’s injuries fall under the following categories of injuries in Schedule 1 of the Act, namely:

(a)        Item 1 – Bruising/laceration (minor/moderate) (percentage of scheme maximum 1% - 3%); and

(b)        Item 32 – Mental or nervous shock (moderate) (percentage of scheme maximum 10% - 20%).

1. Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on 11 September 2004 as follows:

(a)   In respect of Item 2, the sum of $1,500.00 representing 2% of the scheme maximum; and;	$1,500.00
(b)   In respect of Item 32, the sum of $11,250.00 representing 15% of the scheme maximum.	$11,250.00
TOTAL	$12,750.00

1. I therefore order that the respondent pay to the applicant the sum of $12,750.00 by way of compensation for the injuries he sustained. 

1. In accordance with section 31 of the Act, I make no order as to costs.