Riddle v Coffey[2002] QCA 337

SUPREME COURT OF QUEENSLAND 

[1] McMURDO P: The appellant, Coffey, pleaded guilty in the District Court at Cairns to one count of doing grievous bodily harm to the respondent, Riddle, on 4December 2000 and was sentenced two days later.  Riddle made an application for criminal compensation under the Criminal Offence Victims Act 1995 (Qld) (“the Act”) and on 14 December 2001 the primary judge awarded Riddle criminal compensation in the sum of $70,200.

[2] Coffey appeals against the quantum of that award principally on two bases, first that the primary judge should have reduced the amount of damages by more than 10 per cent to adequately reflect Riddle’s behaviour in contributing to his injuries under s 25(7) of the Act and second, that the primary judge failed to have regard to the principles set out in s 22(4) of the Act in assessing compensation and effectively compensated twice for the same injuries.

The facts

[3] The primary judge recognised that in assessing criminal compensation she was required to have regard to the factual basis upon which Coffey was sentenced:  RvChong; ex parte Chong;[1] Facer v Bennett & Anor.[2]  Those facts were as follows.

[4] The offence occurred at Coffey’s home in Cairns in the early hours of 2 April 1999.  Coffey and Riddle had known each other for some years.  As Coffey was intending to move to Victoria it was agreed that Riddle, his wife and two children, then aged 12 and 7, would live in Coffey’s Cairns home; Coffey would also live there for a few weeks whilst he arranged his affairs in preparation for his relocation to Victoria.

[5] On 1 April 1999 Riddle and his family and Coffey had been living together in Coffey’s home for about five weeks.  Riddle and his wife were not getting on well and, a few nights before the offence occurred, Riddle began to sleep in the downstairs section of the house.  Tensions built over Coffey’s slowness in moving to Victoria.  Riddle and his wife and Coffey spent the day of 1 April painting the down stairs area of the house but disagreed as to how to complete the work, which was eventually finished with the assistance of a professional painter friend.  At about 6.00 pm Riddle, his wife and Coffey started drinking home brewed beer. Coffey’s girlfriend arrived and Riddle’s wife prepared dinner.  Coffey and Riddle argued and Riddle refused to eat his dinner and went downstairs.  Coffey later followed him downstairs and they argued.  Riddle followed Coffey upstairs where they drank more beer.  Matters settled for a time but tensions soon rose again.  Coffey said that Riddle really wanted to die and offered to kill him, saying “Just sign something letting me do it”.  Riddle did sign something to this effect and they continued arguing.  Coffey told Riddle that he must move out of the house and Riddle said he would do so in about a week.  Coffey told him to leave immediately and threatened to chop off Riddle’s head.  Riddle’s wife unsuccessfully tried to defuse the situation but Riddle stood up and pushed the table towards her.  Everyone was upset.  Riddle returned downstairs and started to pack his belongings.  Riddle’s wife prepared for bed and saw Coffey in the lounge room holding a cane knife.  Coffey’s girlfriend said, “You’re not going to use that” and Coffey replied, “If I have to, to defend myself”.  His girlfriend told him to put the knife down, he did so and everyone went to bed.

[6] Riddle then came upstairs to complete his packing and woke up his wife.  He was still angry and upset, twisted her thumb and said, “You’re aware I’d like to kill you”.  Coffey may have overheard this threat.  Riddle’s wife went back to sleep when Riddle again went downstairs.  Coffey locked the upstairs door and placed a chair with a glass or glasses on it to act as an alarm system should Riddle return.

[7] Later Riddle did return.  He woke up his wife by banging on the wall outside her room.  He was very angry because he thought she had locked him out.  She let him inside, explaining that Coffey had barricaded the door.  She returned to her room and Riddle went down the hallway to confront Coffey.  Coffey, armed with the cane knife, jumped out at him.  Coffey immediately hit Riddle with the knife.  Riddle turned to leave but Coffey struck him a number of blows to his head and back.  Riddle said, “You don’t have to do this, I’m leaving”.  As Riddle held on to a doorframe he was struck again to his back and shoulder area.  Riddle thought Coffey was going to kill him and turned to grab the weapon, realising for the first time that it was a cane knife.  Coffey swung the knife again at Riddle’s head and shoulder area.  Riddle blocked the knife with his left forearm but the blow was so forceful it broke his arm.  Riddle then tried to force Coffey back into the wall and received a cut to his thigh.  Riddle struggled with Coffey to stop the attack.  The episode ended in the bathroom where Riddle pushed Coffey into the wall causing a hole.  Riddle repeated, “I’m going, I’m going” but he was cut again, this time to the top of his shoulder and neck area.  Coffey called out, “You’re attacking me, you’re attacking me” but the judge accepted that Riddle was merely trying to protect himself from further attack.

[8] Coffey’s girlfriend came to the bathroom door and said, “What have you done?”  She told Riddle to leave.  Riddle backed down the hallway and Coffey followed.  Riddle left the house, sought assistance and was taken to hospital for urgent medical treatment. 

[9] Coffey alleged at sentence that the attack occurred in darkness until his girlfriend turned on the bathroom light and that Coffey heard Riddle say very loudly that he was going to deal with Coffey just before the attack.  Coffey also claimed to be genuinely but unreasonably in fear of his life when he assaulted Riddle.  These facts were not contested by the prosecution and Coffey was sentenced on that basis. 

The apportionment

[10] Her Honour recognised that Riddle had contributed to the injuries inflicted upon him by Coffey.  They both behaved unacceptably, their stupid and violent conduct fuelled by the home brew they consumed.  Her Honour rightly accepted that Riddle, in aggressively re-entering the house with the background of events that evening, contributed to Coffey’s massive over-reaction and to his unreasonable belief that his life was in danger from Riddle.  As the learned primary judge stated both in her sentencing remarks and in the decision appealed from, Coffey’s attack on Riddle was out of all proportion to any reasonable reaction to Riddle’s behaviour.  Coffey was responsible for a vicious, frenzied, prolonged attack which involved repeated, forceful blows to Riddle’s head and body with a potentially lethal weapon; the attack continued when Riddle was attempting to withdraw.  Her Honour assessed Riddle’s contribution to his injuries at “the nominal percentage of 10 per cent”. 

[11] A judge’s decision to reduce an award of damages under s 25(7) of the Act involves questions of discretion with which this court will not lightly interfere. An appellant seeking to persuade an appellate court that a judge was wrong in this aspect of a judgment carries a substantial onus.  The primary judge was also the sentencing judge and was in a better position than this court to assess the evidence and arrive at a suitable apportionment.  Whilst another judge may have apportioned greater contribution to Riddle, I am not persuaded that the reduction of damages by 10 per cent, an amount which the learned primary judge, (mistakenly, in my view), referred to as “nominal”, was unreasonable.

The primary judge’s approach to the assessment of compensation under sections 22(4) and 26 of the Act

[12] An award for criminal compensation under the Act does not invoke the principles applicable to common law damages[3]; it is intended to help the applicant, not to reflect the compensation to which the applicant may be otherwise entitled.[4]  A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000.[5]

[13] An award for compensation must be made by reference to the compensation table in schedule 1 of the Act, which lists 36 different types of injury giving each a percentage or a range of percentages of the scheme maximum.[6]  If the injury does not come within those itemised in the compensation table then the court must decide the amount of compensation by reference to the amounts paid for comparable itemised injuries in the compensation table.[7]

[14] Section 22(4) of the Act provides:

“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.”

[15] Section 22(4) requires compensation under the scheme to be calculated by assessing the injury as or similar to an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table.  A judge cannot merely take a broad brush approach and assess damages within the range where the injury falls between 0 to 100 per cent of the scheme maximum.  See R v Ward; ex parte Dooley.[8]  The appellant contends that the learned primary judge in her assessment of damages for Riddle’s physical injuries did not pay sufficient attention to s 22(4) of the Act and the approach required by Ward.

[16] There is no contest with the approach taken by the learned primary judge to the award for mental or nervous shock (moderate) of $9,000 (12 per cent of item 32 in the compensation table).

[17] The appellant accepts that if multiple injuries are suffered, separate heads of damage may be calculated by reference to the compensation table and added together, so long as the overall award does not exceed the scheme maximum: s 25(3) of the Act.  But the appellant contends that dicta of Thomas JA sitting as a single judge in R v Kazkoff; ex parte Ferguson[9] as to the effect of s 26 of the Act requires that the multiple injuries here should be treated as a single injury for the purposes of compensation under the scheme.

[18] Section 26 of the Act, which it is unnecessary to set out in full here, requires that harm which should be substantially treated as a single state of injury is to be so treated, even though it may consist of more than one injury or be caused by more than one incident.  At first, this seems to be in conflict with s 25(3) of the Act.  But a careful reading of s 26 in its entirety shows the section aims to encourage only one criminal compensation order for one episode of injury; it does not discourage a judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by s 25(3) and Ward.  This interpretation of s 26 is supported by the Explanatory Notes to the Act[10] which emphasise that the section encourages only one order for a single episode of injury, not that one order be confined to one item of damage under the compensation table.  See also the observations of Helman J in R v Pangilinan; ex parte Owens.[11]  The Act intends to provide full compensation within the limits it imposes; it does not encourage or authorise duplication of compensation for what is effectively the same injury.  The correct approach will always depend on what is fair and reasonable on the particular facts of each case, within the limits of the Act, and appeal courts will not lightly interfere with these exercises of discretion.[12]

[19] Riddle suffered significant physical injuries as a result of Coffey’s attack.  He lost approximately 600 millilitres of blood.  He suffered a large “w” shaped laceration to the left posterior occiput.  There were two lacerations on his left forearm, each about 10 centimetres in length and involving muscle belly.  A wound extended for 20 centimetres along the left lateral thigh with obvious muscle involvement.  Another 25 centimetre laceration extended over the right shoulder, again with obvious muscle involvement.  There was a small superficial laceration to the right anterior shoulder.  He suffered three compound fractures to the occiput with a small contusion on the left with a small amount of intra-cranial air.  He underwent a compound scrub and repair of the lacerations to the skull, leg, back, forearm and an open reduction internal fixation of the left ulnar.  The wounds to his head were closed in theatre.

[20] Orthopaedic surgeon Mr David MacIntosh, examined Riddle, who was then 46 years old, on 23 August 2001 and observed significant muscle loss of the left forearm with tenderness in the mid part of the ulna and some slight diminished sensation on the ulnar side of his hand and little finger with weakness of dorsiflexion of his wrist because of absent extensor carpi ulnaris muscle function.  His left hand had slight weakness of abductor digiti minimi and mild wasting of this muscle.  He has a five per cent loss of function of his left arm and will have difficulty with heavy work, particularly if using his wrist, and may have some slight residual disability with fine work using this hand, though this may improve further.  His left forearm fracture has united well and his residual disability is due to muscle damage.  There was loss of muscle bulk and a significant scar, approximately 15 centimetres long, to the left lower lateral thigh with some weakness of the left quadriceps and a four centimetre wasting of the left leg compared to the right.  He had a full range of movement of the left knee which was stable but he had significant weakness of the patello femoral joint.  He has a five per cent impairment of his left leg due to muscle damage leaving some restriction on full strength in his left knee and some predisposition to stresses through the patello femoral joint.  There was some minor discomfort due to the skull injury.  He has a five per cent loss of function of his right arm which may cause some persistent difficulty with heavy work or work above shoulder level.  Physical effects of his injuries amount to difficulty with heavy work or more extreme sporting activities.  He should be able to return to normal work activities on a fulltime basis with little physical disability other than those outlined.

[21] The learned primary judge observed that the percentage of loss of function or impairment in a medical sense referred to by Mr MacIntosh is completely unrelated to the percentage of the scheme maximum referred to in the Act.  Her Honour was right to observe that the percentage of loss referred to by Mr MacIntosh was not directly transferable to the percentages of the scheme maximum in the compensation table.  His evidence was however, important information in determining the amount of compensation in accordance with the table.

[22] Her Honour also rejected the appellant’s contention that to assess awards for not only the fractured skull, loss of use of limbs and bodily scarring but also stab wounds was to doubly compensate.  Her Honour determined that Riddle should be compensated for his physical injuries in the following way:

[23] In this case Riddle could be adequately compensated within the limits of the scheme under items 9, 13, 16, 19 and 28 above.  On the facts here, to additionally compensate him for Item 25, (Stab wounds (moderate)), was to effectively twice compensate him for the same injury; the award of $9,000 for moderate stab wounds should be excluded from the calculation of damages. 

[24] The learned judge did not assess compensation in respect of items 9, 13 and 16 in the manner required by this court in R vWard.  The judge awarded the maximum percentage for item 9, the head injury, which, though serious, could not be said to be the worst of its type.  Adopting the Ward approach, an award of 10 per cent of the scheme maximum, ($7,500) was appropriate under this heading. 

[25] Similarly, the significant injuries to the arms (items 13 and 16) could not be said to be the most serious or close to the most serious of injuries covered by these items.  An award of 15 per cent of the scale maximum, ($11,250), more appropriately reflects the proper assessment of damages under the scheme for the partial loss of the use of the right shoulder/arm and a similar amount ($11,250) should be allowed for the fracture and partial loss of the use of the left arm. 

[26] Because item 19 only refers to the minor/moderate loss of use of leg,[13] her Honour’s assessment of 10 per cent, the maximum percentage of the scheme maximum for this item, was within an appropriate exercise of discretion, consistent with the Ward approach.  Similarly her Honour’s assessment for compensation for severe bodily scarring under item 28 at 15 per cent in a range from 10 to 30 per cent of the scheme maximum was also appropriate, having regard to the photographs of Riddle’s significant multiple body scars.

[27] As has been noted there is no appeal in respect of the award of $9,000 for moderate mental or nervous shock under item 32 .  It follows the amount of compensation which should have been awarded before the reduction of 10 per cent was $57,750 and an amount of $51,975 after the reduction.

[28] I would allow the appeal with costs to be assessed, set aside the order of 14 December 2001 and instead order that the appellant/respondent pay to the respondent/applicant the amount of $51,975.  I would grant the respondent a certificate under s 15 Appeal Costs Fund Act, 1973 (Qld).

Orders

1. Appeal allowed with costs to be assessed.

2. Set aside the order of 14 December 2001 and instead order that the appellant/respondent pay to the respondent/applicant the amount of $51,975.

3. Grant the respondent to this appeal a certificate in respect of the appeal under s 15 Appeal Costs Fund Act 1973 (Qld).

[29]  JERRARD JA:  I have read and agree with the reasons for judgment of McMurdo P and with the orders she proposes. 

[30] HOLMES J: I agree with the reasons for judgment of McMurdo P and with the       orders she proposes.