Barnier v Campbell[2000] QDC 273

CIVIL JURISDICTION

JUDGE McGill SC

and

HERVEY BAY

DATE 16/08/2000

JUDGMENT

HIS HONOUR: This is an application for compensation under the Criminal Offence Victims Act 1995. The respondent on 1 November 1999 pleaded guilty to a charge of assault occasioning bodily harm alleged to have been committed on the applicant on 23 June 1999. A sentence was imposed and in addition the Court ordered that he pay compensation in the sum of $500 to be paid on or before 1 November 2001, and imposed a default term of imprisonment in respect of that order for compensation. That order was made under section 35 of the Penalties and Sentences Act.

The present application, as I say, is made under the Criminal Offence Victims Act 1995. Section 22 of that Act provides that a right, entitlement or remedy under this part, which is the relevant part, is in addition to and does not limit and is not in substitution for any right, entitlement or remedy under common law or otherwise. That operates subject to section 38 but that section is of no immediate relevance.

That provision suggests that any entitlement to compensation under this Act is additional to the entitlement to compensation under the order made under section 35 of the Penalties and Sentences Act. Section 25(7) of the Act provides that 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.

I think that where an order for compensation has been made under section 35 of the Penalties and Sentences Act and that compensation has been paid, the fact of the payment would have to be regarded as something relevant for the purposes of subsection 7 of section 25 so that, although the entitlement would not be in substitution for that entitlement, the fact that the payment had already been received would be of some relevance.

Bearing in mind the basis upon which compensation is assessed under the Criminal Offence Victims Act, even compensation which had been paid under the Penalties and Sentences Act would not necessarily operate to achieve a reduction pro tanto in the order for compensation under the 1995 Act. However, it would I think be a factor which would be relevant and therefore would be appropriately taken into account under subsection 7.

In circumstances where the compensation has not actually been paid I think that the mere existence of the order is of really little relevance. The position is simply that there is an entitlement under an order under the Penalties and Sentences Act, but the right under the Criminal Offence Victims Act is specifically made additional to that entitlement by section 22(1), so that I should properly ignore the mere existence of the order.

The circumstances were that the applicant was punched hard in the face by the respondent while the applicant was carrying out his duties as a customer relations officer and security officer at the Hervey Bay RSL one evening. This occurred at the time when the respondent was drunk and behaving in an aggressive and abusive fashion towards at least the applicant, and possibly some others.

The punch was with sufficient force to fracture the left facial bones although it was not a particularly substantial fracture. It was originally not detected on X-rays taken the following day at the Maryborough Hospital and it was only after the applicant was examined using CT scans that they revealed what Dr Maloney describes as “a slightly depressed fracture of the interior lateral wall of the left maxillary sinus”.

That in itself would have been painful but might have been expected to recover without any treatment. There has however been a complicating feature in that it seems that there has been some damage to the infraorbital nerve and that has left the applicant with some continuing pain and local tenderness which Dr Maloney thought in March this year may have been due to the presence of a traumatic neuroma and he suggested that the applicant wait and see if this resolved spontaneously and indicated if it did not do so the condition was one which would be susceptible of treatment by way of surgery which should relieve the pain although that could cause some temporary or permanent loss of sensation on part of the face.

The applicant is currently complaining about some area of loss of sensation on the front part of the left face but he also complains of pain there from time to time and I would expect that the pain would be the more serious problem for him. It seems overall from Dr Maloney's report that if that pain condition does not resolve spontaneously it is susceptible of treatment.

The applicant also suffered some loosening of a couple of teeth although he says that that has settled down as was expected at the time. There was some swelling and a small laceration on the left cheek with a small laceration as well inside the mouth on the left side and a black eye.

The applicant was treated with some antibiotics and had four days off work. Although the applicant was able to return to work his attitude towards the work has changed. He has become much more nervous about having to deal with any difficult or disruptive customers, fortunately not something which occurs very often at that particular club, and he has also become very nervous about receiving some further adverse attention from the respondent.

There were apparently some threats made at the time of the assault and he is understandably concerned about the prospect of those being carried out although one would expect that as time passes and they have not been carried out that the effect of this should diminish.

He saw a psychologist, Mr Cresswell, for the purposes of a report provided in January this year. At that stage Mr Cresswell was of the opinion that the applicant had suffered a psychological injury specifically in the form of an adjustment disorder and a major depressive episode. He indicated in the diagnostic criteria that an adjustment disorder was one where the symptoms were not expected to persist for more than six months after the stressor had terminated and refers to some indications as at January this year that the conditions were recovering spontaneously.

If they do not recover spontaneously, he suggests for the depression the possibility of attending a psychiatrist for medication or for the adjustment disorder or the depression some management in the form of psychological treatment where he would expect improvement if it is going to occur after five to 10 sessions. The general effect is that the condition is one that if it does not resolve spontaneously is likely to be susceptible of improvement through treatment.

The applicant has as yet not undergone any treatment he says because of shortage of funds. The fact that he has not undertaken this treatment and the fact that he has persisted in this position at the club I think is of some relevance in that it demonstrates that the psychiatric injury was not of sufficient severity to cause him to leave his job or to cause him to do what would be required to receive some psychiatric treatment in the meantime.

The extent of the consequences are not unusual for someone who suffers a physical attack of this kind, at least in terms of people who make applications under this Act. The schedule refers to an item, or indeed to three items, which are described in terms as mental or nervous shock. That is I think a lawyer's expression rather than a doctor's expression. It is one which has been used because of the development of the law of torts in relation to liability for mental or nervous shock and refers these days more generally to any psychiatric or psychological injury. Mr Cresswell is of the opinion that there was an injury in this case and I think that would mean that the matter would fall within an item in the schedule.

The applicant relies on a number of items in schedule 1 where there are a number of injuries or perhaps different aspects to one injury. In my opinion the appropriate consequence of the way in which the legislation is formulated is that one determines the appropriate percentage by reference to schedule 1 where the various matters fall within identified injuries in that schedule and then add the percentages together, subject to a sort of general overriding caution that the total arrived at by this process ought not to be disproportionate to the overall collective effect of the injuries on the applicant so as not to offend against the requirement in section 22, subsection 4, that the maximum amount of compensation is to be reserved for the most serious cases and the amounts provided in other cases should be scaled according to their seriousness. I am conscious of that when making the assessment.

With regard to the bruising and laceration I think that the matter falls within item 1 and there was some bruising and laceration of a relatively modest extent and I think the appropriate assessment there is 1 per cent.

The injury to the teeth, I think there was some indication of injury to the teeth but again it was a relatively minor injury, particularly when one bears in mind the extent of injury to teeth which is possible for which the maximum percentage is 12 per cent for item 5. Overall, I think it is again appropriate to allow 1 per cent under item 5 in respect of the relatively minor injury to the teeth.

With regard to the fracture of the facial bones, again I think overall this was a minor fracture. It did not require surgery at the time and sometimes surgery, even quite extensive surgery can be required for facial fractures which can sometimes be quite extensive and sometimes not susceptible of complete rectification with surgery.

Given the range of injuries which could fall within items 6, 7 and 8 I think the matter falls within item 6. However, in view of the injury to the nerve it should not be at the lowest end of the scale for item 6, although in view of the fact that there is prospect of treatment if that injury does not resolve spontaneously it should not be too much above that and I think the appropriate percentage under item 6 to allow is 10 per cent.

With regard to the question of nervous shock, again I think that there was some real psychiatric injury so that some amount should be allowed but that overall in the light of the evidence, and bearing in mind how this case compares with other cases involving mental or nervous shock, it is appropriate that it falls within item 31 about the mid-range of that item. It is certainly possible to imagine less serious examples, but also more serious examples without too much difficulty.

I do not think it is appropriate to say that it is the lowest end of item 31. I think it should be regarded as a mid-range example of minor nervous shock and I will allow 5 per cent.

The overall effect, therefore, is to allow 17 per cent of the scheme maximum $75,000. On that basis I would assess compensation at, if my calculation is correct, $12,750.

I am satisfied that the applicant did not in any way contribute himself directly or indirectly to the injuries that he suffered. So it would not be appropriate to make any reduction on that account. And for reasons given earlier, I will not make any reduction in respect of the order for compensation made on sentence.

There is no entitlement to costs.