DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   In this application Siuaialii Moses Tanielu (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for bodily injury he sustained arising out of the criminal conduct of Tomimoana Teo (“the respondent”) who was convicted by the District Court at Beenleigh on 19 May 2005 for the offence of assault occasioning bodily harm to the Applicant committed on the 6 February 2004 at Kuraby in the state of Queensland.

2. [2]
   The respondent although being served with the application and supporting affidavits on the 12 September 2006 made no appearance at the hearing.

3. [3]
   The application for compensation is made pursuant to section 24 of the Act and is supported by the following material:-

1. (a)
   the affidavit with exhibits of the applicant sworn 17 August 2006 and filed in this court 5 September 2006;
2. (b)
   the affidavit with exhibits of Samit Seth, solicitor, sworn 1 September 2006 and filed in this court on 5 September 2006;
3. (c)
   the affidavit with exhibits of Geoffrey Leonard Grantham, clinical and forensic psychologist, sworn 11 July 2006 and filed in this court 5 September 2006;
4. (d)
   the affidavit with exhibits of Dr Derek Neoh, plastic surgical registrar, sworn 14 July 2006 and filed in this court on 5 September 2006; and
5. (e)
   the affidavit with exhibits of Allan Fredrick Addicot, licensed agent, sworn 18 September 2006 and filed in this court on 10 September 2006.

Facts

4. [4]
   The applicant was assaulted by the respondent in the course of an argument on 6 February 2004 during which the respondent bit off the top of the applicant’s right ear and the applicant sustained other bodily lacerations and bruising as well as psychological consequences. In respect of the ear injury the applicant had emergency surgery that evening and subsequent plastic surgery.

Applicant’s Injuries (Physical)

5. [5]
   The applicant’s injuries are described by Dr Charles Baillieu, plastic surgical registrar of the Princess Alexandra Hospital, in his report of 2 June 2004 [being exhibit “B” to the affidavit of Dr Derek Neoh^[1]]as “…a laceration to his right ear which resulted in complete amputation of the tip of his ear.  He brought the piece of his ear into hospital with him.  This was immediately sewn back on as a graft after careful washing”. 

6. [6]
   Dr Neoh further reported on 6 June 2006 that the attempted restoration of the piece of ear was unsuccessful and the applicant “…subsequently underwent an ear reconstruction using a post auricular flap. His last operation was on the 26^th August 2005, for which he had parts of the reconstructed ear revised.  His last outpatient appointment was on the 22^nd November 2005.  The medical officer that saw him in the Clinic at the time commented that the reconstructed ear was of a good result and almost symmetrical to the left ear”.  The applicant underwent five operations in all with respect to his ear.  The applicant also states that he suffered other abrasions and bruising to his body although there is no medical evidence in support of these allegations.

 Mental or nervous shock

7. [7]
   The applicant also claims that he has suffered a Post-Traumatic Stress Disorder (PTSD) and relies on the medical report dated 3 February 2006 from Geoffrey Grantham to support this claim.

8. [8]
   Mr Grantham describes the applicant’s symptoms post the assault in the following terms:

“It appears Mr Tanielu may have been depressed subsequent to the assault.  He described regularly crying, a loss of appetite and accompanying weight loss, withdrawal and sleep disturbance.  During 2005 Mr Tanielu experienced an improvement in mood and describes himself as “definitely unhappy”, rather than depressed”.^[2]

When commenting upon the indicators for PTSD as measured by the traumatic symptom inventory (“TSI”) Mr Grantham stated “The TSI is concerned with current symptoms and overall it appears that Mt Tanielu did develop PTSD subsequent to the assault, with these symptoms being most persistent during 2004 and diminishing during 2005“.^[3]

9. [9]
   In his “Summary and Conclusions” Mr Grantham stated “Due to the assault, 2004 was a difficult year for Mr Tanielu, and no doubt his family, during which he experienced PTSD symptoms. During 2005 a progressive recovery took place, the most persistent symptom being anger. Those around Mr Tanielu no longer mention the assault and he continues to endure feelings of anger in isolation. He is most concerned about being irritable with his children for no good reason. Under these circumstances treatment by a clinical psychologist would seem appropriate and likely contribute to Mr Tanielu ongoing recovery. It would seem reasonable to consider that in the longer-term Mr Tanielu will experience a normal life although the damage to his ear will remain a permanent reminder of this episode”.^[4]

10. [10]
    It is now well accepted to establish a “mental or nervous shock” injury the applicant must prove more than a negative or unpleasant reaction to the offence; what must be proved is “(an) injury to health, illness, or some abnormal condition of mind or body over and above the normal human reaction or emotion following a stressful event” as distinct from “…fear, fright, unpleasant memories or anger towards an offender…” – Thomas JA in Ferguson v Kazakoff [2000] QSC 156, at paragraphs [15,[17] and [21] respectively. 

 Applicant’s Contribution

11. [11]
    In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

12. [12]
    I have referred to the circumstances of the incident in paragraph [4] above and I am of the opinion that although there were words exchanged between the parties the applicant’s behaviour at the relevant time did not either directly or indirectly contribute to the injuries complained of by him.

Categories of Injuries

13. [13]
    I find that the applicant’s injuries fall under the following categories of injury in Schedule 1 of the Act, namely:

1. (a)
   Item 1 – Bruising/laceration (minor/moderate) (percentage of scheme

maximum 1% - 3%);

2. (b)
   Item 27 – Facial disfigurement or bodily scaring (minor/moderate) (percentage of scheme maximum 2% - 10%) on the basis that Dr Neoh confirmed in his report of 6 June 2006 “…that the reconstructed ear was of a good result and almost symmetrical to the left ear” which would indicate that the disfigurement would seem to identify with the “moderate” range at best, rather than any higher degree and I further note that there was no evidence at the hearing of the current appearance of the applicant’s ear;

3. (c)
   Item 31 – Mental or nervous shock (minor) (percentage of scheme   maximum 2% - 10%).

14. [14]
    Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injury he sustained on 6 February 2004 as follows:-

15. [15]
    I therefore order that the respondent pay to the applicant the sum of $12,750.00 by way of compensation for the injuries he sustained.

16. [16]
    In accordance with section 31 of the Act, I make no orders as to costs.