Van Der Syde v Gadd[2006] QDC 353

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation under the Criminal Offence Victims Act 1995.  The application is made following the conviction of the respondent on a charge of grievous bodily harm committed on 29 February 2004 at Maroochydore.  The respondent pleaded guilty to the offence on 10 June 2005, and was sentenced to four years imprisonment suspended after serving 18 months imprisonment, with an operational period of four years.

2. [2]
   The respondent was born on 30 December 1956, and at the relevant time was a member of the Bandidos Motor Cycle Club. The applicant and the respondent knew each other and there was some bad blood arising out of some kind of unlawful relationship between the two of them which appears to have been related to drugs. On 29 February 2004 the applicant went to the house of his nephew in Maroochydore and told him that the Bandidos were “after him”. He was asked to leave by his nephew, who did not want any trouble. At around 9.00 pm the applicant was leaving his nephew’s residence when he saw the respondent and another person coming towards him. The applicant noted that the respondent had a firearm stuck down the front of his pants. The applicant retreated, but at the same time pulled out a knife which he was carrying. He apparently attempted to run away from the respondent, but was tackled, and a scuffle ensued during which the applicant stabbed the respondent in the abdomen. Following the stabbing, the respondent shot the applicant once in the upper back, just above the scapula.

3. [3]
   The application submits that the applicant sustained the following compensable injuries as a result of the attack by the respondent:-

1. (a)
   Gunshot wound to the back with resulting haemothorax, nerve damage and ongoing pain and disability; 

2. (b)
   bodily scarring resulting from surgery;

3. (c)
   bruising and lacerations;

4. (d)
   lost teeth;

5. (e)
   hypoxic brain injury;

6. (f)
   psychological injuries (mental and nervous shock).

4. [4]
   The applicant was examined by Dr Trevor Myers, a consultant physician. He was also examined by Dr Scott Campbell, a neurosurgeon in June 2005, and by Dr Barbara McGuire, a clinical psychiatrist who examined the applicant also in June 2005.

5. [5]
   Dr Campbell’s diagnosis was of:

1. Chronic right lateral chest wall pain.
2. Cognitive deficits, secondary to hypoxic brain injury.
3. Upper and lower limb weakness and numbness secondary to nerve injury or hypoxic brain injury.
4. Bowel/bladder and sexual dysfunction, secondary to nerve injury or hypoxic brain injury.

6. [6]
   His prognosis with regard to return to the work force in any capacity is poor. In fact he has a full-time carer and receives a disability pension.

7. [7]
   Dr Campbell considered that the injury suffered by the applicant could now be classified as stable and stationary, with maximal improvement having already taken place. He opines that ongoing management should be based on symptom control. The chest wall pain can be eased by analgesics and avoidance of aggravating factors. Memory can be assisted by using lists, diaries and prompts. He notes that the carer helps with the housework, cooking and personal care that is made difficult due to poor grip. The carer also performs shopping that is hindered by Mr Van Der Syde’s inability to walk for long distances. Dr Campbell concludes that the applicant has suffered a 31% whole person impairment in accordance with the Combined Values chart, pp 604-605.

8. [8]
   Dr McGuire concluded that whilst the applicant exhibited some of the criteria necessary for a diagnosis of post traumatic stress disorder he did not exhibit all the criteria. Her diagnosis was one of a severe adjustment disorder with depressed mood. She considers that the disorder is likely to be longstanding and not particularly susceptible to treatment. She notes that the applicant suffers from incontinence which is the most embarrassing and humiliating aspect of his condition and which requires him to wear nappies and to avoid social life. He is also now impotent which constitutes a great sense of loss to him.

9. [9]
   The reports of the doctors concerned were attacked on the basis that the doctors did not have the benefit of reports from treating doctors, nor hospital records. The doctors conceded that they acted upon what the applicant told them in relation to the events, his history, and his symptoms. It appeared that the applicant had been inconsistent in respect of some matters in the evidence he gave at the committal hearing and the evidence he gave at the hearing of the present application. His credit and reliability was attacked on this basis. However, it is to be borne in mind that one of the injuries which the applicant has suffered is hypoxic brain injury. The doctors in cross-examination were aware that some aspects of the matter had not been fully or accurately put to them, but they did not think that this in the end had any material effect upon their findings. Having seen the applicant in the witness box and having some knowledge of his present and past addiction to drugs and an unpleasant criminal history involving a number of offences of violence, I am not disposed to regard him as a witness worthy of a high degree of credit. Still, the fact of his injury and the circumstances of its occurrence are clear, and it is also clear, in my opinion that he has suffered considerable neurological and other physical damage and I consider he has also suffered a significant degree of psychological or psychiatric damage.

10. [10]
    It was submitted to me that I should not take into account any evidence inconsistent with the view taken of the evidence on sentencing, the authority for which is said to be Facer v Bennett & Bennett [2001] QCA 395.  It is not however contended that additional evidence may not be adduced at the compensation hearing.  If the principle mentioned is correct, it was submitted that I should not take a view of the consequences of the offence that extended beyond the consequences as they were put at the sentence hearing.

11. [11]
    The submission is put in the following terms:-

“The level of injury suffered by a victim is of particular significance in the sentencing process for the offence of grievous bodily harm.  As a general proposition the greater the injury the greater the sentence.  The sentence hearing proceeded on the basis that other than it being too dangerous to remove the bullet, the applicant was going to make a recovery.  In particular, the Crown Prosecutor informed the court that the basis of the grievous bodily harm was that if the injury was not treated it would have been life threatening.  When the sentencing judge raised the prospect that the applicant was going to be “all right” the Crown Prosecutor replied, “that’s as far as my instructions go”.  There was no mention of most of the injuries now relied on by the applicant.  No victim impact statement was tendered.”

12. [12]
    In effect it is said that I ought to assess compensation on the basis that the seriousness of the injury was as apparently conceded in the sentencing process, rather than as may be revealed by the affidavits to which I refer. With respect I do not think that that submission can be correct. The sentencing process and the compensation hearing have entirely different purposes. One is concerned with punishment, the other with compensation. In my view the discretion reposed in the court on a compensation hearing cannot be limited by the view of the applicant’s injuries put forward for the purposes of sentencing. To the extent that the authority above indicates the contrary, I would be unable to follow it.

13. [13]
    The applicant submits, in effect, that although the hypoxic brain injury which the applicant has been diagnosed as suffering is a result of the gunshot wound, that brain injury should be separately assessed for compensation, upon an analogy with items 9, 10 and 11 of the compensation table which are concerned with a fractured skull and either no brain damage or some accompanying brain damage. Reference is made to s 25(4), s 25(5) and s 25(6). Sub-sections 4 and 5 address the question of the amount that can be awarded in respect of an injury specified in the compensation table or under a regulation. Sub-section 6 provides that in deciding the amount to be awarded for an injury which falls into neither category, the court must decide the amount by:-

1. (a)
   comparing the injury with injuries to which subsections (4) and (5) apply; and

2. (b)
   having regard to the amounts that may be ordered to be paid for those injuries.

14. [14]
    I think it is right to say, upon an examination of the compensation table that the table does not have in contemplation brain damage otherwise than as caused by a fractured skull. Items 24, 25 and 26 of the schedule which relate to gunshot or stab wounds in my view have in contemplation only physical consequences of those events rather than mental consequences. The mental consequences to which I refer are those which are not captured by items 31, 32 and 33 relating to mental or nervous shock. Consequently, I think that the legislation would authorise an assessment of brain damage suffered by the applicant by comparing the amounts that can be awarded under items 9, 10 and 11 of the compensation table.

15. [15]
    Compensation is claimed under item 2 of the compensation table – bruising/laceration etc. (severe). The percentage of the scheme maximum is stipulated at 3% to 5%. The relevant injuries are a laceration to a finger together with some soft tissue injury and abrasions to the right arm. I think that compensation should be assessed under item 1 relating to minor to moderate injury and that the percentage applied should be 2%. This will produce a figure of $1,500.00.

16. [16]
    A claim was made under item 5 for loss or damage to teeth. It is said that numerous teeth have been lost but I consider there is no satisfactory evidence that any such loss is a consequence of the assault which occurred. There are reasons to doubt that the applicant has been completely open and candid in his evidence. I would award no compensation under this head.

17. [17]
    A claim was then made for the hypoxic brain injury under or by an analogy to item 11 relating to severe brain damage, the range being from 25% to 100% of the scheme maximum. I accept that it is probable that hypoxic brain injury resulted from the grievous bodily harm perpetrated by the respondent and it is reasonable to accept that that has resulted in a 16% whole person impairment. I would award 25% of the scheme maximum producing a figure of $18,750.00.

18. [18]
    The claim in respect of the gunshot wound is brought under item 26 which relates to severe cases and provides a range of 15% to 40%. I accept that the gunshot wound to the neck has resulted in neurological deficits, chest wall pain and bowel/bladder/sexual dysfunction. Excluding the impairment related to the brain injury, this again produces an impairment of the whole person of approximately 16%. I consider that an appropriate award under this head would be 35%, producing a figure of $26,250.00.

19. [19]
    A claim is made under item 28 for bodily scarring at the “severe” end of the range, the range being from 2% to 30%. There are, it would appear, a number of scars on the back and right shoulder of the applicant resulting from surgical intervention. I consider these will be adequately compensated for by an award of 6% of the scheme maximum, amounting to $4,500.00.

20. [20]
    Finally a claim is made under item 33 for severe mental and nervous shock, the applicable range being from 20% to 34%. The diagnosed condition, as indicated earlier is an adjustment disorder with depressed mood. I think it is likely that some of the disability which the applicant now suffers under this head pre-dated the offence. His criminal and drug history tends to suggest some psychological disturbance. Apart from that I would think that an award of 20% was appropriate, but making allowance for that factor, I would award 15% under this head. That produces a figure of $11,250.00.

21. [21]
    Finally it needs to be determined whether a reduction in the award should be made in accordance with the provisions of s 25(7). This sub-section requires the court to have regard to everything relevant, including, for example any behaviour of the applicant that directly or indirectly contributed to the injury. I think that the responsibility for the applicant’s injuries must lie mainly at the feet of the respondent, who, whatever the true reason may be, initiated the encounter between the two of them by pursuing and confronting the applicant. Against this it has to be said that it was the applicant who first resorted to a weapon by stabbing the respondent in the abdomen, and that the shot in the back of the neck by the respondent may well not have occurred if the applicant had not first resorted to the use of a weapon. I think that in the circumstances the applicant’s award should be reduced by 30% to recognise his contribution to the injury which he suffered at the hands of the respondent.

22. [22]
    In the result, the respondent is ordered to pay to the applicant the sum of $43,575 compensation.