Dooley v Ward [2000] QCA 493

[1] THE COURT: This is an appeal by leave from an order made in the District Court on 25 August 2000. Under the Criminal Offence Victims Act 1995 the appellant was ordered to pay the sum of $30,000 compensation for injuries caused to Susan Joy Dooley, following from the conviction of the appellant on a charge of having assaulted her, occasioning her bodily harm. There were three components of the award:

[2] It emerged during the argument on the application for leave, conducted by Mr Rafter on behalf of the appellant and Mr Bourke for the respondent, that disposition of the case might depend upon the meaning of s 22(4) of the Act:

"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".

The expression "maximum amount of compensation" in s 22(4) could possibly have the same meaning as "scheme maximum" referred to in s 25(2), quoted below. On the other hand, it might be intended to refer instead to the various maxima expressed in terms of percentages in the compensation table mentioned in s 25(4).

"(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 1 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 in 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 the amount that is the listed percentage of the scheme maximum; or

(b) if there is a 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) In deciding the amount that should be ordered to be paid for an injury to which subsections (4) and (5) do not apply, the court must decide the amount by -

(a) comparing the injury with injuries to which subsections (4) and (5) apply; and

(b) having regard to the amounts that may be ordered to be paid for those injuries.

(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 the 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 section 22(3) and (4)."

[4] To express the question being discussed in a slightly different way, it is whether the intention of s 22(4) is to require that an injury falling within a particular description in the compensation table referred to in s 25(4) be assessed as a due proportion of the highest percentage set for that type of injury. For example, the 33rd item in the table in Schedule 1 to the Act is:

If an injury consisting in mental or nervous shock falls within that range, is the appropriate figure arrived at by scaling between the 20% and 34% mentioned in item 33 or by scaling down from the figure applicable to 100% of the "scheme maximum", presently set at $75,000? Because the expression "maximum amount of compensation" in s 22(4) is singular, not plural, one might think that the intention was to require scaling down from the $75,000 maximum.

[5] But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20% to 34% of the scheme maximum, which is done by considering how serious the shock is in comparison with the "most serious" case, which must be compensated by an award of the maximum, 34%. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.

[6] If our conclusion as to the construction of s 22(4) were not right, some odd results might follow. The maximum for loss of vision in one eye is 70%. If there were, say, partial loss of vision in one eye and one were obliged to assess it by reference to the scheme maximum which applies to total blindness ($75,000) the award would surely have to be very much less than the maximum for loss of vision in one eye. To put the point more generally, fixing a figure for an injury falling within one of the categories in the compensation table by scaling down from the maximum for that category will not necessarily be consistent with the result fixed by scaling down from the scheme maximum; the court can hardly do both. The result appears to be that for severe mental and nervous shock, one of the categories in issue here, the court has to consider what is an appropriate figure, having regard to the range of 20% to 34% provided. Nervous shock which is severe but not of the "most serious" kind must be put at the appropriate place in the range of 20% to 34%, regarding the 34% as "reserved for the most serious cases". Similarly, severe "bruising/laceration etc", for which a range of 3% to 5% is set, must be assessed on the basis that the 5% is "reserved for the most serious cases".

[7] A complication of this scheme is that it contemplates that one has to think of the "most serious" sort of "minor/moderate" instance of "bruising/laceration etc"; that seems an odd concept. But it is, in our respectful opinion, reasonably clear that the scaling according to seriousness referred to in s 22(4) must be intended to be scaling within the ranges set out in the compensation table, rather than scaling within the range of 0% to 100% of the scheme maximum, now $75,000. This view is consistent with the approach taken in Sanderson v Kajewski [2000] QSC 270; SC No 5114 of 2000, 12 July 2000 (Thomas JA) and Buckland v Estate of Kennedy [2000] QSC 337; SC No 2488 of 2000, 2 October 2000 (Ambrose J).

[8] In the present case it is clear that the physical injuries suffered were fairly modest. There is room for argument about the severity of the mental or nervous shock, but whatever view is taken of that, one could not assess the total compensation at $30,000, if the scaling to which s 22(4) of the Act refers is scaling down from the absolute maximum, $75,000. But on the view we have expressed above, this does not matter; the scaling has to be done within the ranges set out in the compensation table.

[9] The learned primary judge, as appears from the figures set out above, assessed the amount for bruising and laceration at $3,750, which is 5% of the scheme maximum. That cannot be supported. To qualify for the 5% which is the top of the "severe" range, one would not have to be beaten black and blue from head to toe; but the bruising and laceration must have some claim to be one of the "most serious cases". Here there were no lacerations and only some moderate areas of swelling to the upper lip, right side of mouth, three fingers and the right elbow. We can find nothing in the evidence to suggest that any of this swelling was long-lasting or causative of significant pain. Since the view that the injury is in the category of "most serious cases" of "severe" bruising and laceration cannot be supported, this Court has to re-assess; we would assess at 2% i.e. $1,500.

[10] The neck, back and chest injuries were not the subject of any orthopaedic report, but Dr Lehmann gave evidence about the matter. In chief the doctor said:

"... she complained about a sore chest and a sore arm - a sore right arm, which is understandable. I didn't see anything swollen on her chest, but there was a little bit of a swelling on the lower back which she didn't complain about.

... she has a chronic back injury which never healed properly, so the swelling on the back was probably a long-standing condition not related to any incident".

There is further information in the record about the respondent's back condition, which dates back to an injury she suffered in 1991. The judge regarded the back and chest injury as falling at the top end of the moderate range - i.e. 10% of the maximum. It is not really clear how his Honour came to this view, on the basis of Dr Lehmann's evidence. It appears that he could find nothing physically wrong with either the back or the chest except a swelling on the back which was not the subject of any complaint. In these circumstances it is hard to see how the injury could get out of the "minor" range - i.e. 2% to 7%; we would award 4%, or $3,000.

[11] It is the mental or nervous shock which creates the real difficulty. The learned primary judge awarded 25% of the maximum; the compensation table allows a range of 20% to 34%, as we have mentioned, for severe mental or nervous shock; so the judge gave about three-quarters of the nervous shock maximum. The evidence on this subject was given in the form of reports by two psychiatrists, Dr Curtis and Dr Spelman. Although the learned primary judge did not say so, his Honour must have assessed on the basis of Dr Spelman's report, because that of Dr Curtis could not possibly have justified the figure fixed.

[12] Dr Spelman had first seen the respondent in 1996, seventeen months before the offence was committed and she had then had "extensive series of treatments from a wide range of medical specialists that had not been of any significant or sustained benefit to her"; it appears that these treatments were thought to be necessary because of the 1991 back injury, referred to above. As a result of the 1991 injury she took numerous pain killers, had injections to relieve pain, valium, Normison, an anti-depressant, physiotherapy, hypnotherapy and hydrotherapy - apparently none of this being of any "significant or sustained benefit" to her. She told Dr Spelman that her routine was to spend the majority of her time in bed; she would go to see her local doctor in the morning to get an injection and then go home and try to sleep for some three hours. Apart from going to doctors, she made few trips out of the house.

[13] After 1996 the respondent was continually under the care of Dr Spelman. He admitted her for two weeks to Belmont Hospital, which seemed to make her rather better. Dr Spelman had been seeing the respondent fortnightly, treating her depression and pain; she had been maintained on methadone. The doctor was of opinion that over the past three years her condition had fluctuated significantly but there had been "a general pattern towards a slow deterioration". He remarked:

"The principal complaint remains of pain with associated disability and a range of other vague neurological symptoms that have been difficult to tie down specifically".

He described her as feeling "quite helpless and hopeless". His opinion was that the 1991 injury was the primary cause of her psychiatric condition. For almost a decade, said the doctor, the respondent had been "chronically unwell and disabled".

[14] After discussing the course of the defacto relationship between the appellant and the respondent, which had lasted some six years, Dr Spelman expressed the view that:

"Mrs Dooley's psychological condition was significantly temporarily aggravated by the assault and the subsequent trauma associated with her involvement in the legal proceedings that extended over the following twelve months. She lived in a constant state of fear of further attacks that worsened her depression, heightened her anxiety symptomatology to the point where she was having episodes of panic anxiety and she developed a range of agoraphobic symptomatology".

The doctor was of opinion that there had been a "gradual diminution in the effect over time of the impact of this assault" and spoke of "significant problems due to the high level of pre-morbid and persisting associated psychiatric and physical disability".

[15] Plainly, the respondent's psychiatric or psychological problems predate the assault by years. The judge was entitled to, and no doubt did, approach the matter on the basis that there had been a significant but temporary aggravation of her condition because of the assault. It seems evident that his Honour would have been justified in putting the mental or nervous shock in the "severe" category, were the respondent's mental condition wholly or substantially due to the assault; but it was not. It is our opinion that the aggravation should have been classified as in the "moderate" category, as being a significant but temporary aggravation of a quite serious pre-existing condition. We would reduce the judge's figure of 25% to 15%, totalling $11,250.

1. Leave to appeal was granted principally for the purpose of expressing a view about the meaning of s 22(4) of the Criminal Offence Victims Act 1995.

2. In our opinion that provision has the effect that the amounts of compensation ordered are, in cases falling within the compensation table in Schedule 1 of the Act, to be scaled within the ranges set out in that table, on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases.

3. Reassessing on that basis, the proper amount of compensation is $15,750.

4. We would allow the appeal with costs and reduce the amount of compensation awarded to $15,750.