DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for a compensation order pursuant to the Criminal Offence (Victims) Act 1995 (“the Act”) brought by Adrian Jason Lanau (“the applicant”).  The respondent to the application is a Ryan Graham Best.

2. [2]
   At the hearing the respondent accepted the applicant was entitled to an order for compensation but disputed the amount claimed by the applicant.

3. [3]
   The respondent was convicted on indictment in the District Court at Beenleigh on 19 September 2003 of an offence of doing grievous bodily harm to the applicant.  The date of the offence was 10 July 2002.  At the hearing it was accepted both that the respondent was convicted on indictment of a personal offence within the meaning of s 21 of the Act, and that the applicant suffered one or more injuries within the meaning of s 20 of the Act.

4. [4]
   The applicant was punched during a game of indoor soccer. The punch broke his jaw. The break was repaired under surgery by insertion of two titanium plates with screws on 11 July 2002.

5. [5]
   As far as I can determine from the reports and records exhibited the repair was successful. The applicant says that he feels his jaw is not as strong as it was before the break,^[1] and he worries about falling and breaking his jaw again.^[2] 

6. [6]
   The injury and subsequent surgery was obviously a very painful and distressing experience for the applicant. The applicant has also had some limited dental work,^[3] and now wears a mouthguard when playing soccer to protect his jaw  against injury.

7. [7]
   The applicant spent two days in hospital after surgery. He has said that he continued to experience “excruciating pain” for “a few days.” This he said was also associated with interrupted sleep. He was able to return to work one and a half weeks after the injury. He says that for a period of about three months he was unable to fully resume his normal social activities. After that initial period of adjustment I assume he was able to participate increasingly fully in his normal social activities.

8. [8]
   In assessing compensation the court is required to relate a claimed injury to a corresponding item in a compensation table attached to the Act. The maximum awards of compensation are to be reserved for the most serious cases, and the awards in other cases are to be scaled according to the relative seriousness of the particular injury (s 22(4)).  The court is also required to be mindful of the principle that the compensation which may be awarded under the Act is intended to help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (s 22(3)).

9. [9]
   Facial fractures are dealt with in tem 6 (for minor fractures), item 7 (for moderate fractures), and item 8 (for severe fractures).  The ranges provided are respectively 8 percent to 14 percent (item 6), 14 percent to 20 percent (item 7), and 20 percent to 30 percent (item 8).

10. [10]
    The most serious facial fractures that come before the court are the multiple fractures (including the Le Fort ll and lll fractures), and the fractures resulting in permanent impairment to health. In the present case I believe the applicant’s fracture should be ranked in the middle range for facial injuries. The appropriate category therefore is item 7, where the range provided in the compensation table is 14 percent to 20 percent of the scheme maximum.

11. [11]
    The applicant said he also had to undertake some dental work. No report from a dentist was placed before the court and I am uncertain about the nature and extent of the dental work. There is a reference in the psychologist’s report to the dental work costing $300 to $400.

12. [12]
    The fracture was of the left anterior mandible (jawbone).^[4]  Although the applicant has subjective feelings the jaw is weakened, there is no medical evidence to support those feelings.  The jaw has apparently healed pain free.

13. [13]
    A reasonable allowance for the facial fracture (including any necessary dental work) is 15 percent of the scheme maximum ($11,250).

14. [14]
    Mr Lynch who appeared on behalf of the applicant submitted that it was appropriate to award three percent to four percent of the scheme maximum for facial disfigurement.

15. [15]
    The best I can make of the evidence on this aspect of the claim is that a small patch of facial hair, if left unshaven, now grows a reddish colour. Generally the colour of the applicant’s facial hair is brown or black. I would be loath to conclude that red coloured hair is a facial disfigurement for the purposes of a compensation order under the Act. Moreover no medical evidence was placed before the court establishing the applicant’s patch of red hair is a consequence of the offence. In the absence of medical evidence it is not self evident to me that the necessary causal link is present.

16. [16]
    The applicant is entitled to a small claim for a laceration referred to in the medical reports by Dr Lynham (the “intra oral laceration”). The appropriate range is one percent to three percent of the scheme maximum. In the circumstances one percent of the scheme maximum will be allowed.

17. [17]
    The applicant also claims for mental or nervous shock. Mental or nervous shock is a compensable injury under the Act. The application for mental or nervous shock is based on the evidence of a Mr Morgan, a psychologist. Mr Morgan interviewed the applicant on 6 July 2004, and subsequently prepared a medico-legal report dated 10 July 2004 for the purposes of the present application.  I also had the advantage of seeing him give evidence at the hearing.

18. [18]
    Mr Morgan suggested the applicant probably experienced a post-traumatic stress disorder after the assault, with the subsidence of trauma symptoms occurring over a period of three to four months. For a further unspecified period of time Mr Morgan considered it probable the symptoms continuing beyond the three to four months timeframe satisfied the diagnostic criteria for an anxiety disorder. Mr Morgan thought that, although the applicant presently has feelings of anxiety, he does not suffer from any formal disorder.

19. [19]
    In general I accept Mr Morgan’s opinion evidence, although I must say I thought the applicant demonstrated some indication of a psychological overlay, which may be expected to remit after the conclusion of the compensation litigation.^[5]  He has experienced a not uncommon psychological reaction to a serious injury.  As a result he obviously suffers from a range of quite understandable feelings^[6] which adversely impact on his quality of life.  However not all psychological reactions which adversely impact on a claimant’s quality of life are compensable.  Only if a claimant’s reactions amount to mental or nervous shock are they compensable.  Thomas JA, in a much cited passage, attempted to offer some practical guidance as to what is and is not mental or nervous shock:

“Clearly, the ordinary usage of the term has been to describe situations of injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following the stressful event.

…

If the legislature had intended that compensation be awarded for every mental consequence including consequential feelings of the complainant, there would have been no specification in s 20 requiring proof of mental or nervous shock.  The legislature would have either adopted the civil system of damages for all effects of the offence, or have defined injury to include all results both physical and mental.

…

It is extremely difficult to define the point at which mental consequences to a claimant from a crime become compensable as ‘mental or nervous shock.’  I consider however, that if nothing more than mere fear, fright, unpleasant memories or anger towards an offender, or a combination of such reactions, the claimant has not show that he or she suffered nervous shock.  Unless the court is affirmatively satisfied that mental or nervous shock has been suffered, compensation should not be awarded for such reactions.”^[7]

20. [20]
    Mental or nervous shock is dealt with in item 31 (minor), item 32 (moderate), and item 33 (severe), where the ranges are 2 percent to 10 percent, 10 percent to 20 percent, 20 percent to 34 percent respectively.  Mr Lynch submitted an allowance in the range of 10 percent to 15 percent of the scheme maximum is justified.  Ms Kellie, who appeared for the respondent, submitted the evidence either did not establish mental or nervous shock or supported an assessment at the bottom of the minor range.

21. [21]
    On balance I accept the applicant developed mental or nervous shock^[8] in the period following the assault.  The exercise the court is required to undertake involves ranking the applicant’s mental or nervous shock against other cases of mental or nervous shock.  The applicant’s mental or nervous shock was of relatively short duration, measured in terms of months, and it has had limited impact on his ability to function in the workplace.^[9]  The continuing emotional effects of the assault, not amounting to mental or nervous shock, cannot be compensated under the legislative scheme.

22. [22]
    Doing my best to assess the applicant’s claim for mental or nervous shock relative to other claims, five percent of the scheme maximum is, I believe, a reasonable allowance.

23. [23]
    The remaining issue between the parties is that of contribution. The respondent contends the applicant’s conduct contributed to the injury suffered by him because he first assaulted the respondent, or because his conduct had led the respondent to wrongly believe he (the respondent) was about to be assaulted, or because his conduct during the game of indoor soccer provoked the assault by the respondent in some way.

24. [24]
    At sentence counsel representing the respondent asserted the assault occurred when he “jumped to a wrong conclusion and in an effort to pre-empt what he thought may be the start of an on field biff” and punched the applicant. Not surprisingly the sentence was imposed consistently with the stated basis.^[10] 

25. [25]
    As far as any pushing, sledging or general rough play is concerned none of that could possibly justify the type of king hit punch of which the respondent was guilty in this case. Pushing, sledging and general rough play are to be encountered in playing competitive soccer, especially at lower levels of skill. Punches or king hit type punches are very rarely seen on the soccer field. If the respondent had engaged in pushing, sledging or rough play that would not in any way justify the type of king hit punch in this case, nor do I believe such conduct should lead to a reduction in the appropriate award on the basis the applicant’s conduct directly or indirectly contributed to the assault on him.

26. [26]
    Finally, I do not believe the claim of a pre-emptive strike should result in a reduction in the award. The learned trial judge in sentencing the respondent took the view the respondent objectively had no reason to strike the applicant. In these circumstances it is not appropriate to reduce the assessment upon the basis that some behaviour of the applicant contributed to the injury suffered by him.

27. [27]
    For completeness I should add that I formally uphold an objection by Mr Lynch to parts of the respondent’s affidavit.

28. [28]
    Order: That Ryan Graham Best pay to Adrian Jason Lanau the sum of $15,750 by way of compensation pursuant to the Criminal Offence (Victims) Act 1995.