Van Gelderen v Craske
[2005] QDC 5
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- Van Gelderen v Craske[2005] QDC 5
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Van Gelderen v Craske[2005] QDC 5
Van Gelderen v Craske[2005] QDC 5
DISTRICT COURT | No 16 of 2003 |
CIVIL JURISDICTION
JUDGE ROBERTSON
ARNE VAN GELDEREN | Applicant |
and
LUKE CRASKE | Respondent |
MAROOCHYDORE
DATE 14/01/2005
JUDGMENT
HIS HONOUR: On the 14th of December 2001 Luke Craske pleaded guilty in this Court to causing grievous bodily harm to Arne Van Gelderen at Mooloolaba on the 11th of March 2001.
Mr Craske was sentenced on the 17th of December 2001 to a term of imprisonment, partially suspended and an appeal against sentence was dismissed. The circumstances surrounding the incident were agreed and the summary of facts was part of Exhibit 1 in the sentencing hearing.
Exhibit 1 was not reproduced in Mr Bailey's material, but it was an important document, so I have taken the trouble of retrieving it from the Court file and I have read it. It is particularly relevant because, as Mr Kimmins properly concedes, section 25 (7) of the Act has applicability in this case in light of my sentencing remarks.
At the time of the incident, which occurred in the early hours of the morning of Sunday the 11th of March 2001 at the Esplanade area in Mooloolaba, Craske was 19 and Mr Van Gelderen was a 28 year old male. Around 12.30 p.m. on that morning Van Gelderen approached a group of young people including the respondent, another male and two females. He was intoxicated and wearing socks and no shoes.
He initially approached one of the females and said something, but he could not be understood. The other male told him to “fuck off” and when Mr Van Gelderen moved towards this male, one of the girls intervened and pushed him and he then walked away. However, he returned and again one of the girls tried to get him to leave them alone. The other male then became aggressive and he and the applicant were pushing each other and at that stage Mr Craske became involved and witnesses saw the three males all pushing and punching at each other, but no one was sure if any punches landed. Craske then pushed Van Gelderen away and told him to keep walking.
At that point Mr Van Gelderen grabbed Craske in a headlock from behind and the other three ran over to them. The other male punched and kicked at Van Gelderen to make him release Craske. At this time Van Gelderen was swinging punches with his free hand. Craske broke free from the headlock and the three males began to fight. Again, one of the girls tried to break it up, but she was pushed by Mr Van Gelderen. The other male got Mr Van Gelderen onto the ground, but he got up and, again, continued the fight and exchanged punches with Craske. At this point Van Gelderen ran away and was pursued by Craske. Other witnesses saw the pursuit, which was over some distance, across the Esplanade towards the beach. Van Gelderen was obviously trying to get away. Craske was swinging punches at him and endeavouring to kick at his legs. Van Gelderen then fell to the ground.
Craske's friends arrived and tried to make him desist, but he then delivered at least one kick to Van Gelderen's head and face area, which involved very significant force at a time when he was wearing boots with a heavy rubber toe.
In sentencing Craske I took into account Mr Van Gelderen's own behaviour in this way:
“...that approach to sentencing must be tempered by me taking into account the complainant's own conduct, which directly provoked the original physical altercation and which, in itself, could be described as obnoxious and loutish. You seemed to have joined in originally to discourage him from persisting, which it did.”
The blow has had very serious consequences for Mr Van Gelderen. He suffered a number of very serious facial injuries, which are set out in the report of Dr Tiard, who saw him at Nambour Hospital before his transfer to Royal Brisbane Hospital. He had fractures to each side of the mandible with displacement of the bone fragment and multiple soft tissue injuries and abrasions, including a chin laceration which required sutures and a fracture to his right toe. CAT scans also revealed swelling and air in the tissues of the neck, which was compressing and displacing the airway.
On the 13th of March 2001 a cryothroidotomoy tube was inserted to allow insertion of a naso-tracheal tube to insure that his breathing was not compromised. He was transferred to Royal Brisbane Hospital on the 13th of March and the following day Dr Voltz operated on him and jaw fractures were reduced and fixed with titanium plates and stainless steel wires.
Dr Voltz states in a report dated the 18th of April 2001, which was tendered at the sentence hearing:
“At last review the patient was noted to have a good occlusion with persisting left mental nerve sensory loss.”
Dr Voltz opined that he may never recover normal sensation in his left lower lip.
Victim impact statements tendered at the hearing also strongly suggested that the applicant had also suffered a mental or nervous shock injury.
He was seen by psychologist Peter Stoker on the 17th of May 2004 and Mr Stoker's report dated the 19th of May 2004 is in evidence. At pages 3 to 4 of the report Mr Stoker has enumerated a significant array of non-compensable stressors which have affected this man's mental health. There seems to be, at least, a suggestion that he may have suffered or be suffering from a psychotic illness.
Mr Stoker, in his report, has carefully and persuasively delineated the non-compensable mental and nervous shock injuries from any nervous shock directly associated with the assault.
I accept his opinion that for approximately four to six months, post assault, Mr Van Gelderen suffered from post traumatic stress disorder, which has now abated.
I am not satisfied on his evidence that any of the other psychological problems, from which this man obviously suffers, are attributable to the assault. In my view Mr Stoker's not qualified to express an expert opinion as to the severity of the mental or nervous shock, by reference to the compensation schedule. That schedule has no clinical basis and could not be used ever as a clinical guide and is merely a guide to Judges who assess the nature of the injury by reference to the evidence and then decide where it fits in the schedule, undertaking the scaling process mandated by Dooley and Ward.
Unfortunately, in the vast array of material filed in support of the application, there is no up to date medical report and one can only assume, having regard to the victim impact statement that no further on-going treatment has been undertaken.
Doing the best I can and taking into account Mr Kimmins' submissions, I make the following awards under the Act:
• item 2 - 4 per cent
• item 8 - 20 per cent
• item 18 - 2 per cent
• item 31 - 10 per cent
a total of 36 per cent, which is $27,000.
In my view, section 25(7) applies to the circumstances of this case. I have had regard to the recent Court of Appeal decisions dealing with contribution, namely Hohn v King [2004] QCA 254 and Johnson v Bancroft [2004] QCA 253. These decisions were appeals from the same District Court Judge and Judgment was delivered in both on the 25th of May 2004.
Having regard to the principles set out in those decisions, I will reduce the award by 10 per cent, having regard to the applicant's contribution to the commencement of the violence which led to his injury.
The final award is $24,300.
I order Luke Craske to pay to Arne Van Gelderen the sum of $24,300.