Stephens v Paix[2002] QDC 241

CIVIL JURISDICTION

JUDGE NEWTON

and

SOUTHPORT

DATE 13/08/2002

JUDGMENT

HIS HONOUR: This is an application for criminal compensation brought on behalf of Shane Bowden Stephens. The respondent to the application is Jean Paul Paix. The application and the material brought in support of the application have been brought to the notice of the respondent pursuant to an order for substituted service made on the 23rd of July 2002. There is no appearance by or on behalf of the respondent today.

The applicant was injured as a result of having a glass forced into his face by the respondent. His Honour, Judge Howell, sentenced the respondent to imprisonment for 12 months to be suspended after five months for an operative period of 12 months.

In his sentencing remarks, Judge Howell commented that, “I think I am satisfied from having observed you yesterday and today, is that you are not the least bit sorry for what you did to the complainant. The only thing you are sorry about or worried about, is you might be brought to justice and what might happen to you. No allowance can be made for cooperation in the administration of justice.”

It is abundantly clear from the material before me that the applicant should in no way be held responsible for the conduct of the respondent, which in my view, amounts to an entirely unprovoked and gratuitous act of violence on his part.

As a result of the injuries he suffered, the applicant sustained a swollen and bruised left eye, which remained affected for some two to three weeks. He could not drive for some one week following the assault. Sutures to his face were removed after some four days and the wound remained bandaged for some three to four weeks thereafter.

The applicant deposes in his affidavit to fragments of glass still remaining fragments of glass under his skin below his eye. These fragments are said to be very irritable. The area is sensitive and the applicant must take care when bathing, that he does not rub the area which causes pain. The wound has left a noticeable scar on the applicants face.

In addition to the physical effects of the assault upon him, the applicant has suffered significant psychological consequences. He is no longer, as he deposes in his affidavit, possessed of a free spirited attitude and is now more short tempered with people generally. He worries about little things which, prior to this incident, would not have caused him any concern. Following the assault, the applicant stopped going out to hotels and nightclubs for fear of being assaulted again.

It is only recently that the applicant has started going out socially once again. When he goes so, he is often nervous and on edge. The assault has lead to considerable diminution in his earning capacity as a musician. He gets very nervous and wary when patrons approach him to request a song, when he is playing at a club. He now goes home immediately after finishing his work as a musician and no longer socialises at all with hotel staff and patrons. Consequently, he has been unable to develop the same rapport with staff and patrons as he was able to do previously, prior to the attack.

Dr Michael David Stanton, a general practitioner, has provided a report in relation to his examination of the applicant. Dr Stanton, observed three noticeable scars adjacent to the outside edge of the left eye, resulting from the cuts caused by the glass. These are the cuts that required suturing. Further scarring is evident in the region of the left eyebrow, where there are tender lumps under the skin where glass has been retained.

Dr Stanton observed a further, approximately one centimetre scar, in the region of the angle of the left mouth.

Dr Stanton's recommendation was that the applicant should be reviewed by a specialist plastic and reconstructive surgeon for an opinion as to the practicality of removing the glass fragments from the wounds.

Dr Stanton also recommended that the applicant be referred to a clinical psychologist for assessment and counselling. Dr Stanton was of the view that the applicant displayed ongoing anxiety, depression and paranoia, and concluded that he is suffering a post traumatic stress disorder.

The doctor noted that such a condition is not satisfactorily treated with drug therapy and would require more clinical psychological counselling techniques over an extended period of time. Doctor Stanton assessed the injuries suffered by the applicant as follows:

The facial lacerations were described as moderate and Dr Stanton's assessment was that they should be assessed at three per cent of the scheme maximum, as set out in the Criminal Offence Victims Act 1995. The facial disfigurement in Dr Stanton's view should be assessed as six per cent of the scheme maximum and the mental or nervous shock which he described as moderate should, in the doctor's view, be assessed at 15 per cent of the scheme maximum.

Russell John Wilson, a psychologist, in his report which has been placed before the Court agrees with Dr Stanton's diagnosis of a post-traumatic stress disorder. However, Mr Wilson disagrees with the assessment of the level of impairment. In Mr Wilson's view the applicant's residual incapacity is seen as being approximately 70 per cent of his pre-assault level of functioning. This, in Mr Wilson's view, equates to approximately 23 per cent of the scheme maximum. There is clearly then a difference of opinion between Dr Stanton and Mr Wilson.

Mr Wilson points out that it can be difficult for a general practitioner to accurately diagnose the extent of a post-traumatic stress disorder. Mr Wilson suggests several factors may have precluded Dr Stanton's accurate assessment of the degree of impairment in this case. As he points out successful diagnosis of post-traumatic stress disorder and the degree of impairment it causes often require skilled, experienced and detailed assessment. More general and briefer inquiries traditionally carried out by general practitioners are not as accurate as the conclusions of psychologists following the administration of specially structured detailed and time consuming questionnaires.

In my view, it is appropriate in this case to recognise the matters referred to in Mr Wilson's report while, at the same time, giving some effect to the opinion of Dr Stanton. I conclude, therefore, that it would be appropriate to assess the level of impairment, resulting from the post-traumatic stress disorder, at 20 per cent of the scheme maximum.

In the result then, for the facial lacerations, I assess compensation at $2,250. In respect of the facial scarring, I assess compensation at $4,500 and in respect of the post-traumatic stress disorder, I assess the compensation at $15,000. The total is $21,750.

I order that the respondent, Jean Paul Paix, pay criminal compensation to the applicant, Shane Bowden Stephens, in the sum of $21,750.