DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for compensation under the Criminal Offence Victims Act 1995 (“the Act”). On 13 January 2003 the respondent pleaded guilty before this court to one count of assault occasioning bodily harm committed on 22 January 2002 on the applicant.  A term of imprisonment was imposed.  The offence is a personal offence so that s. 24(1) of the Act is satisfied.  I made an order for substituted service of the application and affidavits in support on 18 March 2005.  Evidently the matter came to the attention of the respondent, because on 12 September 2005 a statement, which is more in the form of submissions in writing than evidence, was sent by facsimile to the court.  It gives a postal address for the respondent in Papua New Guinea.  After seeing a copy of the statement, counsel for the applicant was content to proceed on the original material.  I have noted various matters put forward by the respondent in that statement, and will address them below.

2. [2]
   The applicant claims that as a result of the offence he has suffered the following injuries:

1. (a)
   bruising and laceration to the head and face;

2. (b)
   damage to teeth;

3. (c)
   facial scarring and disfigurement;

4. (d)
   chronic soft tissue musculo-ligamentous injury to the cervical spine;

5. (e)
   closed head injury resulting in cognitive deficits; and

6. (f)
   mental and nervous shock.

The offence

3. [3]
   The circumstances of the offence appear from the transcript of the sentencing proceedings, and His Honour’s sentencing remarks. The applicant was one of a group of men who were drinking at the casino; the respondent was with a different group who were also there. One of the respondent’s group dropped a glass which broke, and the applicant says that as a result some broken glass came near him and almost went into his eye. He said something about that, and this led to an argument between the two groups in the casino. Both groups were then ejected from the casino by security guards. Apparently there was then a fight between the two groups in George Street, although the applicant said that he was the last to get to the fight. What happened outside was filmed using surveillance video cameras, and during the hearing His Honour saw the video tape (which I have not seen) and noted that the complainant and his group had approached the prisoner’s group with aggressive intent.

4. [4]
   There was an altercation in which both the respondent and the applicant were involved, although it was not said that they were directly involved with each other, and then the incident seemed to break up. By the end of the incident, the applicant was apparently on the ground not able to defend himself at all, with some other people trying to assist him, when the respondent ran up and renewed the attack specifically on the applicant. The Crown prosecutor submitted that the respondent was shown in the video tape swinging 14 punches to the face, at least 13 of which connected, and the tape showed the respondent taking some care in lining up his blows. There was at the end a savage kick to the face after the respondent had gone to the trouble of replacing his shoe and lining up the applicant. In his sentencing remarks, Healy DCJ noted that the violence was started by the complainant and his group, at least when they got out into the street, but that the video recorded that subsequently, “You engaged in a systematic beating of a helpless supine man which culminated in a deliberate kick to his face.”

5. [5]
   The respondent in his statement alleges that the applicant was the aggressor and that he threw the first punch. He also claims that he was not at the scene of the actual disagreement between the applicant and the other parties and that the timing was wrong and that he was caught up in the public affray. He claims that while trying to stop the fight he was first hit by the applicant, and acted in self defence. That version of events does not appear to be consistent with either the evidence before the sentencing judge, or the findings of fact made by His Honour for the purposes of sentence, and it is appropriate that I proceed on the basis of the approach adopted by the sentencing judge: Facer v Bennett [2002] 2 Qd R 295 at 300.

6. [6]
   The statement also raises a point about the claim not being pursued within three years from the incident. Under the Act, an applicant has three years from the date of conviction (the Act s. 40(1)(a)) and this application was brought within that time.

Medical evidence

7. [7]
   Following the attack, the applicant must have passed out because the next thing he recalls is looking at the ambulance bearers^[1].  He was taken to hospital where he was treated.  He had x-rays, a CAT scan and plastic surgery and he then went home.  He said his face was swollen and severely bruised for a month and he had to take Panadol on occasions for the pain.  He also had headaches for some time.

8. [8]
   He was seen on 9 October 2004 by a neurosurgeon, Dr Campbell, for the purposes of a report^[2].  Some of the details of the assault as set out in this report by Dr Campbell are, as pointed out by the respondent in his statement, not consistent with the evidence put forward at the sentencing hearing, and the findings of the sentencing judge.  For the purpose of these proceedings, I treat those details so far as they differ as wrong, although I do not think that that has the effect of invalidating any of the expressions of opinion by Dr Campbell in the balance of the report.  Dr Campbell referred to the examination at the hospital revealing extensive bruising to the face and scalp, lacerations to the lip and several chipped teeth; the scan of the brain showed no intracranial pathology.  Subsequently, the applicant attended a GP complaining of neck pain, lower back pain, pins and needles in the hands, headaches, anxiety and depression.  Dr Campbell recorded complaints of cognitive deficits and neck pain.  The former related to poor short term memory and the latter was present most days of the week, worse at night, and radiated to the left shoulder, aggravated by physical exertion or by sitting for an extended period.

9. [9]
   The report stated that after the assault the applicant left his employment as a pest control operator, which had been full-time. Some time later he attempted to take up this work again, but gave it up after a few months because of neck pain and poor memory, and has been subsequently unemployed. On examination, there was a reduction in extension and lateral movements of the cervical spine by 20 per cent, with pain in the extremities. X-rays in June 2004 showed no fractures in the spine, chest and left hip. Dr Campbell diagnosed chronic soft tissue musculo-ligamentous injury. Dr Campbell was doubtful whether he would be able to return to work. He expressed the opinion that the assault was the sole cause of the head injury and the injury to the cervical spine. He thought further improvement in the symptoms was unlikely, nor was there any appropriate treatment, other than for acute exacerbation of the neck pain. He noted that the cognitive deficits were producing frustration and low mood, which were also likely to be chronic. The applicant in his affidavit in January 2005 complained of continuing to experience regular neck pain, with which it is difficult to cope whilst trying to work.

10. [10]
    The applicant was seen by a plastic and reconstructive surgeon, Dr Harris, on or about 11 October 2004 for the purposes of a report^[3].  This confirmed that the treatment at the hospital involved sutures mainly to the mucosal surface of the upper lip.  At the time of the examination, the applicant was complaining about some tenderness in that area, particularly if he pressed on the lip in shaving, or from the heat of a cup of tea.  There was one small area about one centimetre in diameter where there was numbness, which produces occasional dribbling, and the scars are more noticeable when he smiles.  The report noted that the dental damage had not been treated.

11. [11]
    Dr Harris reported there were two main scars, one two centimetres in length on the right upper lip above it and crossing in to the margin of the lip, and one on the left side two and a half centimetres in length which becomes tight when he stretches his lip as in smiling. There are also multiple small scars, some on the inside surface exhibiting fibrosis. There is also a small scar below the red margin of the right lower lip, probably due to penetration of the lip by a tooth. Dr Harris was of the opinion that pain would have been considerable for some time. He did not consider the scarring had any adverse effect on his ability to carry out his employment. He did not suggest any further treatment to improve the appearance of the scars, nor did he comment on their general appearance, or suggest that they produced a particularly unsightly appearance for the applicant.

12. [12]
    The applicant was seen on 28 June 2004 by a psychiatrist, Dr Grant, for the purposes of a report^[4].  Again his description of the account of the circumstances surrounding the assault is different from that given at the sentencing hearing; indeed he said the applicant has no recollection of the assault itself.  The report referred to extensive pain and swelling around the face which took some time to settle, and some chipped teeth which have not been repaired.  He had difficulties with eating, over a period of two to three months.  The applicant complained that after the assault he had become more socially withdrawn, and more vigilant and wary in social situations.  On occasions, he becomes very fearful and nervous if he perceives a threat or is reminded of the previous assault.  Following the assault, a relationship which had continued for three or four years came to an end, which he attributed to a change in his mood, and he has not established any other relationship since then, because of lack of confidence and reduced social life.  He also has difficulties with fluency, which he attributes to his cognitive problems.  He complained of difficulty with sleep, but associated it with neck pain.

13. [13]
    There were nightmares about the assault for about one month after the incident. About 12 months after the assault, he saw a GP who put him on anti-depressants, which he took for three months; they were helpful for a while. Dr Grant thought that mental state examination was consistent with injury to the frontal lobe of the brain. Dr Grant diagnosed post-traumatic stress disorder of a mild to moderate extent. He expressed the view that the applicant would benefit from about eight sessions of psychiatric therapy, which may well produce some improvement, although he would expect some permanent impairment.

Injuries

14. [14]
    With regard to the bruising and lacerations, these were extensive about the face, with particularly severe lacerations around the mouth, which required plastic surgery and have left the applicant with some continuing problems. In the circumstances, I accept that the injury falls into item 2, the severe category. I think it belongs in the category of the most serious cases, and I will allow five per cent for this injury.

15. [15]
    Loss of or damage to teeth comes under item 5. There is some material in the medical evidence of there having been some damage to the applicant’s teeth, but there is really no information which provides any basis for assessing the extent or severity of the damage, except that it involves at least two teeth. It was not sufficiently severe to have induced the applicant to do anything about it. The main problem here is simply that the evidence is very limited, and in view of that, although I have a suspicion that the injury may well be more significant, in my opinion the only appropriate course is to allow an award at the bottom of the range, one per cent.

16. [16]
    The scars are numerous but most of them are minor, and even the two more significant ones are only about two centimetres long. They interfere to some extent with the normal functioning of the mouth, but even in relation to that, the evidence is fairly limited. Nevertheless, I will proceed on the basis that there is some visible scarring around the mouth, and that it does interfere with functioning to some extent. I accept that it falls about the middle range of item 27, and will allow five per cent for this.

17. [17]
    The neck injury was significant. It has produced persisting pain, and is a significant factor contributing to the difficulty the applicant has in working. The prospects are not good. In all the circumstances, I agree that it falls within item 23, the severe category, although obviously there could be significantly worse examples of injuries to the back, neck to chest, so I agree that it falls towards the lower end of the range of that item. I will allow 10 per cent for the neck injury.

18. [18]
    The closed head injury is a little more difficult to assess. I accept that the applicant has suffered brain damage, and that this is interfering with his ordinary day to day functioning, and contributing to the difficulty he has in working. It would also make him feel depressed, and by interfering with verbal communications and by making it difficult to remember names, be contributing to his social withdrawal. These factors I think are properly taken into account when making an assessment in respect of this physical injury, although care must be taken not to overcompensate by allowing for the psychological effect of injuries under more than one head^[5].  Items 9, 10 and 11 all refer to a fractured skull.  Item 9 is “fractured skull/head injury (no brain damage)” which is capable of applying in circumstances where there is a head injury without a fractured skull, but would not apply in the present case because the effect of the medical evidence is that the applicant has suffered some brain damage.  Items 10 and 11 are “fractured skull (brain damage – minor‑moderate)” and “fractured skull (brain damage – severe)” respectively.  Although the applicant did not suffer a fractured skull, the position appears to be that where there is brain damage, these are the appropriate items to use even if there was no skull fracture^[6].

19. [19]
    Dr Campbell thought that the condition was stable and permanent, and that it was interfering with his ordinary life, and causing frustration and low mood, which were likely to be ongoing. Using a table for clinical dementia rating produced an assessment which was said to be “mild”, although that does not necessarily translate to any particular rating for the purposes of the schedule to the Act. Interestingly, using the AMA guidelines this is said to be the equivalent of a 15 per cent whole person impairment, whereas the cervical spine injury produces a 5 per cent whole person impairment. The deficiencies of the AMA guidelines are notorious, and there is nothing in the Act which requires assessments made for the purposes of the Act to be in accordance with those guidelines, and I think the principal significance of this evidence is that it suggests that the objective effect on the applicant of the head injury has been worse than the effect of the neck injury^[7].  Dr Campbell also noted that his problems were not likely to prevent him from completing studies for a New South Wales pest control licence, although they were likely to result in reduced grades.  He did not say that the deficits would be likely to render him unemployable, although he was concerned that a combination of those deficits and the chronic neck pain may have that effect.  Accordingly, this is not a case where the applicant has been rendered unemployable by the brain damage, but it is also not a case where the brain damage has not adversely affected his employability.  That is relevant to the process of scaling the seriousness of the injury and hence the amount of compensation payable under the Act.

20. [20]
    I was referred to the decision of the Court of Appeal in Hohn v King [2004] 2 Qd R 508.  In that case, the applicant had been struck many times to the head which led to compound fractures of the skull, intracerebral contusions and pulmonary contusions, which were life-threatening.  He spent three days in intensive care and some time in ordinary hospitalisation which included some rehabilitation which was cut short when the applicant discharged himself about two and a half weeks after the original assault.  A further CT scan later in the month after he returned to hospital showed a large degree of cerebella oedema.  The brain injury gradually settled, and he was discharged about three weeks later after some further rehabilitation.  Two years after the injury there were continuing headaches, intermittent vertigo, difficulty with short term memory and anger control.  The medical evidence did not suggest any particular form of treatment to improve the condition.

21. [21]
    His cognitive deficits were assessed as 7.5 per cent permanent impairment of the whole person, although the report of the decision does not show that the method of assessment used was the same as the method of assessment used by Dr Campbell in the present case, and the evidence in that case came from a different doctor. It occurs to me that difficulty with anger control might be potentially a more serious problem than difficulty with verbal fluency. That applicant, at 54, was significantly older than the present applicant, who is 34. A clinical and forensic psychologist assessed a reduction of full scale IQ of 9 attributable to the assault, and he also produced low scores on particular tests sensitive to brain injury. That applicant was no longer able to manage his own affairs, and an administrator had been appointed by the Guardianship and Administration Tribunal. In that case, the majority of the Court of Appeal concluded that the continuing symptoms indicated that the brain damage was severe, and that that injury fell about the middle of the range for item 11, at 60 per cent.  In that case, there was also a neck injury, which appears to have been rather similar to the neck injury suffered by the present applicant, and the majority of the Court of Appeal assessed 10 per cent for that injury as well.

22. [22]
    In my opinion, the circumstances of that case justified a more substantial award under item 11 than do the circumstances of this case. In the first place, that applicant suffered significant fracturing of the skull, and much more significant physical injuries, which required an extensive period in hospitalisation. Secondly, the description of the adverse consequence of the brain damage sounds more severe^[8], particularly because of the problem with anger management, which had been noted as a particular feature of the trial when that applicant was a witness.  Although a percentage disability was given in that case which was much lower than the percentage disability given in the present case, it is not clear that this disparity in percentages can be taken at face value.  Apart from anything else, it is not clear that they were both made using the same method of attributing percentages, and the task of putting a percentage disability on brain damage would be likely under any circumstances to be difficult.  I acknowledge that this applicant is somewhat younger than the applicant in that case, but in all the circumstances, I do not think that this case justifies an assessment as high as that in Hohn.  In all the circumstances, I will allow 40 per cent in respect of the head injury.

23. [23]
    The mental and nervous shock is established by the post-traumatic stress disorder diagnosed by Dr Grant, which he puts as being mild to moderate in extent. There was a prospect of improvement with some therapy. Dr Grant performed an assessment in accordance with the psychiatric impairment rating scale, which is required to be used for such assessments under the Civil Liability Regulation, but otherwise appears to me to have nothing to commend it. There is the further difficulty that this assessment did not separate out the consequences of the post‑traumatic stress disorder from the consequences of the brain damage; it was performed before the brain damage was diagnosed by Dr Campbell.  Many of the matters referred to in the reasons for the assessments which make up the rating appear to be related to the brain damage rather than the psychiatric injury.  Dealing specifically with the psychiatric injury, the position appears to be that there was mild to moderate injury with the prospect of improvement but with the likely persistence of some symptoms.  In LMW v Nicholls [2004] QDC 118, I considered a number of matters where awards had been made for post-traumatic stress disorder, and concluded that moderate post-traumatic stress disorder, which slowly abates with some persistence of symptoms, commonly resulted in an award in the range of 10 to 15 per cent.  Given this condition was assessed as mild to moderate, I think an award toward the lower end of that range is appropriate, and I will allow 11 per cent for mental and nervous shock under item 32.

Contribution by the applicant

24. [24]
    The statement by the respondent asserts that the applicant contributed to the injury, on the basis that he was clearly the aggressor which led to the offence, having thrown the first punch. The sentencing judge, with the benefit of the surveillance videos, appears to have proceeded on the basis that the applicant was one of a group of people who was initially acting aggressively towards the other group which included the respondent. Had the injury been suffered at that time, in my opinion some reduction on this basis would certainly have been justified. The sentencing hearing and His Honour’s findings, however, indicate that after that initial fracas, there was a later stage, when the applicant was no longer a threat to anyone, when he was deliberately attacked and persistently beaten by the respondent, and it was that conduct for which he was sentenced. I accept that the various injuries to which I have referred were suffered in the course of the systematic beating of the applicant at a time when he was helpless and supine, as found by the sentencing judge. In those circumstances, I do not consider that it is appropriate to make any reduction in the amount of compensation under s. 25(7). Arriving at that conclusion, I am attempting to apply the approach adopted by Williams JA in Hohn supra, and bearing in mind the factors identified as relevant by Atkinson J in that matter at [105].

25. [25]
    The percentages to which I have referred add to 72 per cent. When applied to the scheme maximum, this produces an award of $54,000. I therefore order that the respondent pay to the applicant $54,000 compensation in respect of the injuries suffered by the applicant as a result of the commission of the offence for which the respondent was before this court on 13 January 2003. There is no entitlement to any order for costs.