Wilson v Kairouz[2005] QDC 401

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks compensation in respect of injuries suffered by him in an incident which occurred on 13 April 2003.  This incident subsequently resulted in the respondent pleading guilty on 5 October 2004, to one count of assault occasioning bodily harm while armed with an offensive instrument, and being sentenced in respect of that count by Judge Healy in the District Court, Southport on 6 October 2004.

Facts

2. [2]
   The applicant, Quentin Wilson, went with his partner and his parents to the Coolangatta airport on Sunday 13 April 2003 to collect his daughter who was flying into that airport for an access visit.  Mr Wilson went to the Freedom service station at the cusp of the airport where he bought a present for his daughter.

3. [3]
   While Mr Wilson was leaving the Freedom service station, he heard screaming or shouting coming from the kebab shop next to the Freedom service station.          Mr Wilson could see a man yelling and raising his arms.  This man was, in fact, Tony Kairouz, the respondent in these proceedings.  Mr Wilson could hear a female screaming and, being concerned, he and his partner went into the kebab shop while his parents stayed in the car.  Mr Wilson went through to the door of the kitchen where he could hear the female screaming.  Mr Wilson saw a woman in her 50s getting up off the floor and Mr Kairouz screaming, waving his hands around and shaking the head of a young boy (who appeared to be nine or 10).  Mr Wilson enquired, “What’s going on here, mate?” and was told by Mr Kairouz, “Get out of my shop.  Go away.  Leave me alone.”  Further words were exchanged and Mr Kairouz started pushing Mr Wilson against his chest and telling him to get out of the shop.  Mr Wilson pushed Mr Kairouz away to create space between them so that he could get a good look at the woman and the boy to see that they were alright. 
4. [4]
   In the meantime Mr Wilson’s partner, Ms Melanie Smith, asked Mr Kairouz his name, which he refused to give.  Ms Smith then said that she was going to call the police. 

5. [5]
   Mr Kairouz then said to Mr Wilson that Mr Wilson had assaulted him by pushing him, that he had a camera in the store which had taped it, and he then walked to the front of the shop saying that he was going to get Mr Wilson’s registration details.  Mr Wilson followed Mr Kairouz outside and told Mr Kairouz that he was not going to take his (Wilson’s) registration details and further, that he (Wilson) was going to call the police.  Mr Kairouz had a piece of paper and a pen in his hand.  Mr Wilson asked for the paper, Mr Kairouz started swinging his hands at Mr Wilson and at this stage, Mr Wilson felt an object cut his face near his right eye.  Mr Wilson describes Mr Kairouz as “going crazy” with his arms swinging everywhere, cutting Mr Wilson in his chest, stomach and shin.  Mr Wilson recalls punching Mr Kairouz at least once in the face, going to the ground at one stage and attempting to defend himself by grabbing Mr Kairouz’s legs.  As Mr Wilson did so, he felt stabbing in his back and to the back of his neck.  At this point Mr Wilson’s father yelled out; Mr Wilson let go of Mr Kairouz, Mr Kairouz went back into the kebab shop and the woman who had been inside the kebab shop was, by this stage, outside saying “Thank you, thank you” but then saying that she had only hit her elbow on the freezer and that was all that had happened.

6. [6]
   Mr Wilson got back into his car, cleaned himself with his father’s handkerchief and some bottled water, went to the airport, picked up his daughter, and spoke to an airport security officer who subsequently arranged for the police to attend at the scene of the altercation.

Sentence

7. [7]
   Judge Healy sentenced Mr Kairouz on 6 October 2004, fining him $500 to be paid within six months and ordering compensation (also payable within six months) in the sum of $1,500 to be paid to the Deputy Sheriff of the District Court, Southport for transmission to Mr Wilson, in default referral to the State Penalties and Enforcement Registry (SPER).  The District Court registry advises that the outstanding fine and compensation have been referred to SPER for recovery action and that, to date, neither the fine nor the compensation has been paid.

Injuries

8. [8]
   Mr Wilson was examined at about 10.08pm on 13 April 2003 at the Emergency Department of the Tweed Hospital.  His injuries were as follows:

1. (a)
   1cm laceration on the right side of his face next to his right eye;
2. (b)
   1cm laceration on his chin;
3. (c)
   multiple abrasions on the back of his chest across both sides;
4. (d)
   an abrasion on the front of his left chest and the left side of his abdomen;
5. (e)
   soft tissue damage in the areas of the abrasions and lacerations.

9. [9]
   The lacerations were sutured and X-rays revealed no abnormalities.

10. [10]
    As at 5 May 2003, the report from Dr Ian Kingston^[1] of the Meadows Medical Centre, Mullumbimby, indicates that there was still scar tissue on the applicant’s right temple, left chin, right neck, left upper chest and back.  In addition,            Mr Wilson had been suffering from recurrent migraines and nausea as a result of the attack and experiencing sleep disturbance and increased anxiety.  The applicant also had a painful swollen right neck at the site of injury.

11. [11]
    As of 30 May 2005, Mr Wilson was still suffering from anxiety arising from the assault, and was still experiencing social withdrawal and headaches.

12. [12]
    The report of Paul Elliott^[2], psychologist, dated 4 June 2005, diagnoses Mr Wilson as suffering from adjustment disorder with mixed anxiety and depressed mood (DSM IV), with a global assessment of functioning (“GAF”) of 60%                  (i.e. Mr Wilson was operating at 60% of his pre-morbid level of psychological functioning) and a probability of permanent psychological impairment of 20%.

13. [13]
    Mr Elliott considered that Mr Wilson needed between six and 10 one-hour sessions of cognitive behaviour therapy (at the Australian Psychological Society recommended fee of $176 per hour) to address anger, anxiety and depression.

14. [14]
    Mr Elliott noted that the only social life that Mr Wilson and his partner currently engaged in was visits to the homes of friends, that Mr Wilson retained hypervigilance in any area in which he felt there was danger with which he could not cope, and that Mr Wilson’s personal relationship was at risk because of the emotional consequences of the assault on Mr Wilson (and his partner who witnessed the event).

The Law

15. [15]
    The application proceeds under s 24 of the Criminal Offence Victims Act 1995.  The provisions of that legislation commenced on 18 December 1995 and provide for compensation in respect of convictions on indictment of a personal offence for injury suffered by an applicant because of that offence.  R v Ward ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries.  In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item.  Riddle v Coffey (2002) 133 A Crim R 220; [2002] QCA 337, is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury, without duplication.

Compensation

16. [16]
    Mr Bagley, counsel for the applicant, seeks compensation under two items as follows:

3. (1)
   Item 2 - Bruising/laceration etc. (severe)

The medical evidence indicates that there were lacerations to the right side of the face next to the right eye, the chin, multiple abrasions on the back of the chest across both sides, abrasions on the front of the left chest and the left side of the abdomen with soft tissue damage in those areas and suturing of lacerations.  Mr Bagley submits that an award of 4% ($3,000) would be appropriate.  I accept that the bruising and lacerations are quite extensive and although not at the “most serious” end of the relevant item, clearly fall (as submitted by Mr Bagley) in the middle of item 2.  Accordingly I award an amount of 4% ($3,000) under item 2.

3. (2)
   Item 32 – Mental or nervous shock (moderate)

Mr Bagley submits that, taking into account Mr Wilson’s GAF at 60% of his premorbid level and the diagnosis of adjustment disorder with mixed anxiety and depressed mood, an appropriate assessment would be at the top of the range for item 32 - mental or nervous shock (moderate).

Taking into account the matters outlined in the report of Mr Elliott, psychologist, noting the probability of permanent psychological impairment (assessed by Mr Elliott at 20%), and the assessment of the applicant by Mr Elliott as suffering from anxiety and stress at a level more than 98% of the “normal” Australian population, I accept that the figure of 20% assessed at the top of item 32 (mental or nervous shock [moderate]) is an appropriate assessment.  Accordingly I award the applicant 20% ($15,000) under that item.

Contribution

17. [17]
    Although it is clear that the altercation occurred as a result of the applicant intervening in an altercation involving Mr Kairouz, an older woman and a young boy, it would appear that the applicant has done nothing more than any right-minded citizen would have done in the circumstances.  I do not, therefore, consider that the applicant has in any way contributed to his own injury (see COVA s 25(7)). the Penalties and Sentences Act s 35 the Penalties and Sentences Act s 35

Effect of Order under Penalties and Sentences Act s 35 re Compensation

18. [18]
    Pursuant to COVA s 25(7), “the Court must have regard to everything relevant” in deciding what amount should be ordered against the respondent.  The outstanding compensation order under the Penalties and Sentences Act s 35 has been referred to SPER and remains currently unsatisfied.  To ensure the applicant does not “double-dip”, I consider it appropriate to reduce the compensation assessed under COVA ($18,000) by the amount of $1,500 ordered by Judge Healy under Penalties and Sentences Act s 35.

Conclusion

19. [19]
    Accordingly, I order that the respondent, Tony Kairouz, pay the applicant, Quentin Wilson, the sum of $16,500.