White v Tuite[2006] QDC 475

CIVIL JURISDICTION

JUDGE ROBERTSON

and

And

MAROOCHYDORE

..DATE 10/11/2006

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JUDGMENT

HIS HONOUR: On the 19th of May 2004 in this Court, the respondents, who are brothers, pleaded guilty to assaulting the applicant, Andrew White, on the 15th of January 2003 at Kunda Park whilst in company with each other, and as a result of the assault they caused bodily harm to Mr White. Mr White now seeks compensation for his injuries.

He was born on the 27th of April ‘63, so at the time of the assault he was 39 and he is 43 now. Wayne Tuite was 38 at the time of the offence and his brother was 36.

On the day of the assault, Mr White was employed as a tow-truck driver with Harvey's Towing at Kunda Park. He had worked previously for Wayne Tuite in a similar capacity at another towing company and their parting in 2002 was described as not amicable.

On the day of the incident, Mr White had earlier been involved in some sort of altercation with another tow-truck driver named Baldwin, who also worked for Harvey's and who had previously worked for Wayne Tuite and who was friendly with the Tuites.

The dispute with Baldwin resulted in Mr White punching him and this led to Mr White's employment with Harvey's Towing being terminated. At around 9 p.m. on the 15th of January, he was on the telephone at the Harvey Towing depot at Kunda Park, speaking to his immediate supervisor about his situation, when the two respondents entered the premises and immediately commenced to assault him. One of them disconnected the phone.

The person on the end of the phone heard Mr White call or say something to the effect that the respondents were dogs. Mr White was punched three or four times and was dragged out of the chair and he was threatened. It appears, from the record, that the respondents then attempted to drag him to their truck which was outside, and he resisted.

The respondents continued to hit him. He managed to escape and he rang triple 0. However, Jamie Tuite, again disconnected the telephone. He was then pushed and shoved by the respondents outside, where he, again, attempted to escape by climbing a chain wire fence. He was pulled back violently and kicked in the heel, which caused him to fall on his head on the concrete and he was then punched in the mouth causing his denture plate to shatter; and he was kicked in the kidney.

Another tow-truck operator then arrived and the two respondents left the scene. Mr White was taken to Nambour Hospital and although there is no report from the hospital, the record before Judge Dodds indicates that he was informed by the Prosecutor that the injuries revealed multiple facial contusions around both eyes and lips, a soft tissue injury over the lumbar spine, a contusion over the right kidney area and a minor kidney injury and a small hairline fracture to the medial aspect of the heel bone. The fracture was set in a cast for six to eight weeks and the other injuries were treated conservatively.

It was accepted at the sentence hearing that the prime mover was Wayne Tuite and that Jamie Tuite played a lesser role in the assault.

It was accepted as well that the respondents had gone to the depot expecting to find Baldwin and that they did not expect to find Mr White there at the premises at that time. It was accepted that when Mr White saw Wayne Tuite he called him a dog and the assault then commenced.

Judge Dodds regarded the matter as having features of a get-square beating, although he proceeded on the basis that the respondents had not gone to the depot specifically to find Mr White.

Wayne Tuite was ordered to pay $2,000 by way of compensation to Mr White, and Jamie Tuite was ordered to pay $1,000 and they received wholly suspended gaol terms. Both orders were made as part of the sentence and pursuant to section 36 of the Penalties and Sentencing Act 1992, and these amounts - or these amounts should be deducted from any award I make under the COVA.

I should say, at this stage, that I have been informed by Mr Maher who appears for the applicant, Mr White, that Mr White has settled with the respondent, Jamie Tuite, and the application this morning relates only to Wayne Tuite.

The COVA scheme requires the Court to undertake a rather mysterious scaling process within the various applicable item numbers in the compensation schedule according to the seriousness of the injury: section 22(4) and R V Ward ex parte Dooley [2001] 2 Qd R 436 (2000) 111 A Crim R 266.

The most serious physical injury was the heel fracture, and this is dealt with by Dr Wallace, an orthopaedic surgeon, in his report dated the 8th of September 2005.

The fracture was not apparent on plain X-rays, but an undisplaced fracture was demonstrated by a CT scan, that Mr White had later at the Logan Hospital. Dr Wallace, however, ascribes only a one per cent impairment due to this injury, but based on Mr White's history, he ascribes a three per cent whole person impairment to the residual effects of the soft tissue injury to the cervical spine; five to eight per cent total impairment as a result of the lumbar spine soft tissue injury; and three per cent to a lateral cutaneus nerve entrapment of the thigh, which he attributes to the accident.

I have to say I am little surprised by these percentages, given Dr Wallace's findings on examination and they are largely attributable to history given by Mr White, which effectively is that because of all of his injuries, and the psychological effects, he cannot now work as a tow-truck driver.

To the extent to which his history of the incident given to the doctors is different from that placed before the sentencing Judge, obviously I have to discount the doctor's opinion.

There is no report from the Nambour General Hospital; however, there is a report from Dr Ratman, who is the applicant's general practitioner. Dr Ratman's report is of limited use for a number of reasons: it appears that the first time he saw Mr White after the incident was on the 7th of June 2003, obviously some months after the assault. Secondly, his opinions in relation to the orthopaedic and psychological and psychiatric matters must be read down in the light of the expert reports that are relied on in relation to these issues. Thirdly, his report does, in some respects, read like an advocate's plea rather than an objective medical report.

As I understand Mr Maher's written submission and his submissions today, he does not place a lot of weight on Dr Ratman's opinion.

Dr Peter Mulholland, a psychiatrist, saw Mr White for medico-legal purposes on the 1st of April 2005. He had access to reports of two other psychiatrists, Dr Matthew and Dr Leggott, which reports post-date the incident, however, these psychiatric reports are not before me, although Dr Mulholland does refer to the contents. His opinion is that Mr White has suffered a mental or nervous shock injury as a direct or indirect consequence of the assault, namely, post-traumatic stress disorder and major depressive illness.

He says at paragraph 25.3 on page 15 of his report:

The applicant gave a history to Dr Mulholland which relevantly, to my assessment of his mental or nervous shock injury included, statements that:

Clearly, he is to be compensated for injury suffered as a result of the assault and not as a result of threatening conduct before or after the assault, so, to that extent, I have to discount Dr Mulholland's opinion.

Apparently, he saw the other psychiatrist for treatment but discontinued and did not keep appointments. So, effectively, his psychiatric condition has been untreated.

Dr Mulholland sets out in great detail in his report the various pre-existing serious adverse stresses that were operating on this man prior to the assault. Mr White gave him a history of depression as a teenager, and in 2001 there are a number of major stresses which compromised his mental health.

Doing the best I can and undertaking the scaling process mandated by Dooley V Ward, I make the following percentage awards:

So, that's a total of 32 per cent.

I am satisfied that although it could be said that the applicant acted provocatively by calling Wayne Tuite “a dog”, the assault was so completely disproportionate that in the circumstances I hold that the applicant has not contributed directly or indirectly to his injuries.

As I have noted, I was informed at the commencement of the proceedings that the applicant has settled with the first respondent. In Mr Maher's written submissions, which were helpfully forwarded to me prior to the hearing, and which I have read, he made a sensible submission and that is, given the concessions made at the sentencing hearing, the overall award should be divided as to two-thirds to the second respondent and one-third to the first respondent.

It follows that the second respondent is liable for the sum of $16,000, from which should be deducted the sum of $2,000 paid as a result of Judge Dodd's award.

The order of the Court is that Wayne Norman Tuite pay to Andrew Jon White, by way of compensation under the Act, the sum of $14,000.

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