Desailly v Grace[2005] QDC 402

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant, Neil Desailly, seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 20 March 2004, resulting in the respondent, Anthony Malcolm Grace, pleading guilty before Judge Healy in the Southport District Court on 10 December 2004 to one count of grievous bodily harm.  The respondent was sentenced to 12 months’ imprisonment to be served by way of an intensive correction order. 

Facts

2. [2]
   The respondent’s son was employed by a trolley collection organisation at Australia Fair shopping centre as at the date of the offence (20 March 2004).  The applicant was at the relevant time a security officer at Australia Fair shopping centre.  As the result of a confrontation between the respondent’s son and the applicant, the respondent’s son was banned from Australia Fair shopping centre, and notice to this effect was served on the respondent’s son on 20 March 2004.

3. [3]
   At about 4.30pm on 20 March 2004 the applicant was performing foot patrols in the food court area of Australia Fair shopping centre.  The respondent walked quickly towards the applicant and when a couple of steps away from him, punched him to the head.  The applicant ducked but was struck with a blow to the right side of his face near his mouth.  The applicant then threw a punch at the respondent which may have hit the respondent in the jaw, and then a wrestle developed during which the respondent bit down on the applicant’s nose.  Both the applicant and the respondent fell to the ground and the respondent let go of the applicant’s nose.  During the course of the assault the respondent was holding a spray can of mace and sprayed the applicant in the face and mouth with the mace, causing a burning sensation.

4. [4]
   The struggle between the applicant and the respondent concluded when other security guards arrived; the respondent was restrained and was subsequently arrested upon the arrival of police.

5. [5]
   In a record of interview with investigating police, the respondent said that he was upset by the treatment of his son and had decided to go and confront the respondent at work.  He spoke to his son and other trolley collectors when he arrived at the shopping centre and some of them conducted a search which located the applicant.  The respondent then approached the applicant, said, “I’m sick of you manhandling my son” and then punched him in the face with the spray can of mace in the palm of his hand to increase the strength of his punches.  Although the respondent denied intentionally spraying the applicant, he admitted that the can of mace discharged when the applicant attempted to pull it from his hand.  The respondent also admitted biting the applicant’s nose, although he claimed that he could not bite effectively because he was missing his top front teeth.

Injuries

6. [6]
   The applicant sustained the following injuries in the altercation:

1. (1)
   Lacerations to his nose;
2. (2)
   Abrasions and severe burning to his mouth and nose area;
3. (3)
   Soft tissue injury to the right middle finger;
4. (4)
   Fractured right wrist (which would have incurred a permanent loss of function if the fracture was left untreated and which would be likely to cause osteoarthritis in the wrist in the future).

The Law

7. [7]
   This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”).  COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injuries 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 in Schedule 1.  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

8. [8]
   Mr Bagley, counsel for the applicant, seeks compensation under three items as follows:

1. (1)
   Item 1 - Bruising/laceration etc. (minor/moderate)

The report of Dr Neil Bartels dated 5 March 2005^[1] indicates that as a result of the incident, the applicant suffered (relevantly under this item) the following injuries:

1. (a)
   human bite to nose, healed spontaneously without treatment;
2. (b)
   soft tissue injury to right middle finger, healed spontaneously.

The facts outlined on sentence^[2] indicate that the applicant was sprayed in the face and mouth which caused a burning sensation.

Mr Bagley submits that an appropriate award for the totality of these injuries^[3] would be an award of 3% ($2,250) which places the assessment at the top of this item (bruising/laceration etc. [minor/moderate]).  I accept Mr Bagley’s submission as fairly encapsulating an assessment of the three specific items of “bruising/lacerations etc.” referred to above and accordingly I award 3% ($2,250) pursuant to item 1.

2. (2)
   Item 16 – Fracture/loss of use of arm/wrist (displaced and immobilised)

The report of Dr Peter Dodd, orthopaedic surgeon, dated 10 August 2004^[4], notes that upon a clinical examination of the applicant’s right wrist on             4 August 2004 “[t]here was no swelling or deformity.  He was tender over the scaphoid and had discomfort at the extremes of flexion and extension.  There was no instability.”  Dr Dodd’s examination of the original CT scan of          26 March 2004 showed that “[t]he fractured scaphoid is cleanly seen on those films with a fracture to the waist of the scaphoid.  It is undisplaced.”  A repeat of this CT scan ordered by Dr Dodd and carried out on 5 August 2004 indicated “definite non-union of the fracture of the right scaphoid.” Dr Dodds’ diagnosis was “an united fractured right scaphoid” which in Dr Dodds’ opinion required “definitive surgical intervention for the non-union of his fractured scaphoid” involving “a bone graft, perhaps aided with internal fixation.”  Dr Dodd anticipated that this would require two days’ hospitalisation and a prolonged recovery period out of the workforce in excess of three or four months.

The report of Dr David Stabler, orthopaedic surgeon, dated 29 September 2004^[5], notes that Dr Stabler operated on the applicant on 29 September 2004, explored the right scaphoid under general anaesthetic, found non-union, internally fixed the fracture with a 26mm twin fix Stryker scaphoid screw and undertook a bone transplant at the site of the fracture.

A further report of Dr Stabler dated 26 November 2004^[6] indicated that the applicant had progressed well post-operatively, that the fracture was uniting (as of 22 November 2004) but that the wrist would not be stable or stationary until at least six months after the surgery.

The report of Dr Neil Bartels of 5 March 2005^[7] indicates that as of 5 March 2005 the applicant had been back at work, undertaking normal duties in his usual capacity for his former employer since 23 December 2004.  The wrist injury was at the point of maximum medical improvement and the residual injuries (based on the restriction of extension and flexion of the wrist) amounted to a 7% degree of permanent impairment arising from the fractured right scaphoid and right hamate.  The internal fixation of the right scaphoid fracture will not be removed.

Mr Bagley submits that the appropriate award is a figure of 16% under item 16 (fracture/loss of use of arm/wrist [displaced and immobilised]) which provides for a range between 8% and 30%.  Given that the applicant required an operation with general anaesthetic, a bone graft and internal fixation, and has been able to return to work but with an ongoing 7% degree of permanent impairment, it appears to me that an award of 16% as submitted would be appropriate.  Accordingly I award 16% ($12,000) for this item.

3. (3)
   Item 31 – Mental or nervous shock (minor)

Paul Elliott, psychologist, provided a report dated 28 May 2005^[8].  Mr Elliott diagnoses the applicant as suffering from adjustment disorder with mixed anxiety and depressed mood of moderate severity, the symptoms of which had remitted as of the examination of the applicant on 18 May 2005, by which date Mr Elliott noted that the applicant’s global assessment of functioning (“GAF”) scale was 90 – “minimal symptoms”.  Mr Elliott assessed the probability of permanent psychological impairment at no greater than 5%.  Mr Elliott considered that the applicant would benefit significantly from three to four sessions of cognitive behaviour therapy to deal with anxiety and stress management, at an Australian Pyschological Society recommended fee of $176 per hour.

Mr Bagley submits that an appropriate award under this item would be a figure of 8%.  However, in my view, given the nature of the diagnosis, the remission of the applicant’s symptoms in a relatively short period of time (as evidenced by the GAF scale of 90) and the positive diagnosis, a more appropriate figure would be 5% of the scheme maximum ($3,750) and I accordingly award that amount.

Contribution

9. [9]
   It is clear that the applicant did not contribute in any way to his own injuries^[9].

Conclusion

10. [10]
    Accordingly, I order that the respondent, Anthony Malcolm Grace, pay the applicant, Neil Francis Desailly, the sum of $18,000.