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  • Unreported Judgment

Phillips v Beer

 

[2002] QSC 192

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

de JERSEY CJ

No 4341 of 2002

MARK TUDOR PHILLIPS

Applicant

and

 

BARRY JOSEPH BEER

Respondent

BRISBANE

DATE 14/06/2002

JUDGMENT

HIS HONOUR: The respondent was on 10 November 1999 convicted of causing grievous bodily harm with intent. Following appeal, his sentence is seven years imprisonment.

The applicant, who was born on 21 September 1959 and is therefore presently 42 years old, was the victim of the respondent's offence. That offence was committed while the applicant was accompanying his step-daughter to the house where she had previously lived with the respondent's son, their relationship having broken down. The purpose of her visit that day, which was 21 April 1998, was to recover her possessions.

While she, with the assistance of the applicant, was doing so, the respondent committed the offence upon the applicant. It involved the respondent inflicting stab wounds with a knife. At that time, the complainant was 39 years old and a security officer by occupation.

In the course of sentencing the respondent, I made findings of fact which were:

That the respondent was not acting at the time in self-defence, that suggestion being negated by the jury's verdict and the way in which the case had been run;

That the respondent, who was upstairs at the time when the applicant and his step-daughter were downstairs recovering her possessions, went downstairs armed with an oyster knife and seeing the applicant there, the respondent approached him with deliberation and inflicted the wounds, the applicant having offered no provocation.

In his affidavit here today, the respondent has sought the adjournment of this application pending his applying to the Court of Appeal for an extension of time within which to appeal against conviction. The basis upon which he would seek to appeal against conviction is the contention that the applicant gave false evidence at the trial, this contention being drawn from material provided to the respondent in support of this present application, especially a psychologist's report which suggests that the applicant at the time of interview had a patchy and incomplete memory of the events; that now being suggested as inconsistent with the quality of the evidence given by the applicant at the trial.

The respondent's concern is that a determination of this application for compensation this morning may prejudice any application he might bring for an extension of time within which to appeal against conviction. I have explained to him that would not be so and that nothing in his affidavit filed on 7 June 2002 would provide any warrant for my not now this morning proceeding to determine this application for compensation.

As would be apparent from what I have said already, I am satisfied that no behaviour on the part of the applicant directly or indirectly contributed to the injuries he suffered, thereby addressing section 25(7) of the Criminal Offences Victims Act (1995).

As a result of the injuries inflicted upon him, the applicant was hospitalised for six days and required surgery. He suffered three wounds, in fact, leaving a 13 centimetre long scar to his throat and two scars of 16 centimetres and 7 centimetres respectively to his abdomen. He has a residual hollow in the left side of his throat and a lump on the right side caused by damaged muscle. As pointed out by the Court of Appeal in its judgment of 26 May 2000, those scars are an embarrassing, constant reminder of the trauma of the incident.

The applicant took five weeks sick leave, and his wife took three weeks off work to care for him. Some idea of the scars may be gained from the photographs which are exhibited to the affidavit of Elizabeth Francis filed by leave this morning.

I am conscious, of course, of the approach required of me under the Criminal Offences Victims Act and the way one should approach the use of the schedule especially bearing in mind that I am not to proceed as the Court would in assessing compensation under the common law. I am conscious of the scheme limit and of the potentially relevant items in the schedule. The ones which I select as appropriate are items 26, 28 and 32.

Item 26 concerns stab wounds of a severe category for which the range of 15 to 40 per cent of the maximum applies. The wounds suffered by the applicant were life-threatening and of a very serious nature. The wound to the abdomen proceeded through the abdominal musculature to penetrate the peritoneum near the spleen and the splenic flexure of the colon. The neck wound proceeded through the neck and behind the strap muscles of the larynx. In all, the applicant was hospitalised for seven days including two days in intensive care and underwent lengthy recuperation at home.

The evidence before me indicates that he had difficulty sleeping; he was unable to sit up for any period of time; and could not stand or walk without severe pain in relation to his abdominal wounds; he had difficulty eating and swallowing and lost a large amount of weight; he also experienced slurred speech as a result of damage to the throat muscles; his speech has, however, since returned to normal, but he still does experience some difficulty swallowing from time to time which is accepted by the medical specialists as a legitimate consequence of the injuries he sustained.

I consider that it is appropriate to allow 30 per cent in respect of item 26 which yields $22,500.

Now, as to scarring which is covered by item 28 that is, facial disfigurement or bodily scarring, severe, for which a range of 10 to 30 per cent applies - an issue arises whether the applicant should be compensated under both items 26 in relation to the stab wound and item 28 in relation to the scarring.

I am conscious of what Justice Thomas said in Kazakoff ex parte Ferguson 2001 2 Queensland Reports 320 but I prefer to take the approach adopted by Mr Justice Helman in Pangilinan ex parte Owens 2001 Queensland Supreme Court 391, my view being that additional allowance should be made for the scarring beyond that stab wounds, because of the substantial effect overall upon the applicant of both assaults.

As to the scarring the evidence is that he is left with scarring associated with a 13 centimetre laceration extending beneath his left sub-mandibular area across into the right sub-mandibular area, that scar being noticeable from a lateral position, it has an associated divot. There is in addition a 16 centimetre mid-line scar on his abdomen which is red and 1 centimetre at its widest and there is the additional scar which is apparent from the third photograph included Ms. Francis's material. The third scar is some 8 centimetres in length just below the costal area; it is better healed than the others but still is noticeable.

I consider that it is appropriate as submitted by Mr Stephenson for the applicant to allow 23 per cent in respect of that scarring which yields an additional $17,500. The evidence is - I should also have said, that the scars are not likely to improve, neither are they likely to deteriorate, but there is little which could be done to improve them by way of revisionary surgery.

The third applicable item is number 32 mental or nervous shock moderate, for which the range of 10 to 20 per cent applies. The evidence is that the applicant exhibits the features of post traumatic stress disorder. The relevant symptoms have now persisted for more than three years and the condition should be regarded as chronic.

Dr McGuire puts the level of seriousness of these symptoms at the moderate point and suggests the symptoms appear to be lessening. She also confirms that the consequences for the applicant include a diminution in his level of self esteem. He presented to her with some features of depression including suicidal thoughts and mood variation. She considers it likely that he will need to consult a psychiatrist in the future but given the uncertainty of the present situation was not in a position to say for how long or at what cost.

In these circumstances I accept that it is reasonable to allow 18 per cent in respect of items 32 which yields $13,500. The total of those amounts is $53,250 which equates to some 71 per cent of the scheme maximum. There will therefore be an order that the respondent Barry Joseph Beer pay the applicant Mark Tudor Phillips the sum of $53,250 by way of compensation under the Criminal Offences Victims Act 1995 in respect of injuries sustained by the applicant consequent upon the commission by the respondent of the offence of doing grievous bodily harm with intent committed upon the applicant on 21st April 1998 in respect of which the respondent was convicted on the 10th of November 1999.

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Editorial Notes

  • Published Case Name:

    Mark Tudor Phillips v Barry Joseph Beer

  • Shortened Case Name:

    Phillips v Beer

  • MNC:

    [2002] QSC 192

  • Court:

    QSC

  • Judge(s):

    de Jersey CJ

  • Date:

    14 Jun 2002

Litigation History

No Litigation History

Appeal Status

No Status