Allen v Stewart[2007] QDC 119

DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   In this application Jay Daniel Allen (“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 Joseph Bain Stewart (“the respondent”), who was convicted by the District Court at Brisbane on 9 November 2004 for the offence of grievous bodily harm to the applicant on 1 January 2003 at Maroochydore in the State of Queensland.

2. [2]
   In accordance with the order for substituted service made by this court^[1] on 30 March 2007, the applicant’s solicitors caused an advertisement to appear in the Public Notices section of The Courier Mail newspaper on 3 April 2007 to effect service on the respondent of the material before the court.  Despite that publication there was no appearance by or on behalf of the respondent at the hearing.

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

1. (a)
   the affidavit with exhibits of the applicant sworn 11 January 2007 and filed in this court on 22 February 2007;

2. (b)
   the affidavit with exhibits of Amelia Ann Gaffy, solicitor, sworn 21 February 2007 and filed in this court on 1 March 2007;

3. (c)
   the further affidavit with exhibit of Amelia Ann Gaffy, solicitor, sworn 29 March 2007 and filed by leave in this court on 30 March 2007;

4. (d)
   the further affidavit with exhibit of Amelia Ann Gaffy, solicitor, sworn 21 May 2007 and filed in this court on 21 May 2007;

5. (e)
   the affidavit with exhibit of John Andrew Cosson, medical practitioner, sworn 12 February 2007 and filed in this court on 22 February 2007;

6. (f)
   the affidavit with exhibit of Dean Powell, medical practitioner, sworn 20 February 2007 and filed in this court on 22 February 2007;

7. (g)
   the affidavit with exhibit of Barbara Anne McGuire, psychiatrist, sworn 26 September 2006 and filed in this court on 22 February 2007;

8. (h)
   the affidavit of Angela Lyndal Crossland, licensed private investigator, sworn 26 March 2007 and filed by leave in this court on 30 March 2007; and

1. (i)
   the affidavit of Philip Leslie Grogan, licensed commercial agent, sworn 27 March 2007 and filed by leave in this court on 30 March 2007.

Facts:

4. [4]
   The respondent was celebrating New Year’s Eve 2003 with his then girlfriend, now his wife, and family at the Cotton Tree camping area, Maroochydore. Part of this celebration was to engage in a water balloon fight with other people at the camping area.

5. [5]
   The respondent was hit in the back with a water balloon and approached the group of people including the applicant to find out who threw the water balloon which struck him. The applicant and others admitted throwing the water balloon to which the respondent started to yell abuse at the applicant and his girlfriend calling her a “silly slut”. The applicant then states:

“I walked over to the Respondent with a water balloon in my hand and held it close to his chest.  I squeezed it, wetting the male’s shirt.  I said, “that’s for calling my girlfriend a “silly slut” and turned and walked away.”^[2]

6. [6]
   The respondent then grabbed the applicant’ right arm and refused to let go. As the applicant attempted to walk away the respondent punched the applicant in the jaw and rendered him unconscious. The assault caused the applicant to suffer a number of serious head and facial injuries set out below.

Injuries (physical):

7. [7]
   The applicant claims compensation for physical and psychological injuries suffered by him as a result of the conduct of the respondent.

8. [8]
   The applicant’s physical injuries are described by Dr Dean Powell, Coordinating Consultant in the Emergency Department at Nambour Hospital, in the following terms:^[3]

• “Closed head injury
• Compound fractured mandible, into the left incisor socket
• Avulsed left lower incisor
• Laceration above right eye
• Laceration to left chin
• Laceration to left ear pinna
• Conclusions to left scalp, brow and upper lip
• Minor grazes to right knee and foot”.

9. [9]
   Dr Powell further states:

“His lacerations were repaired and he was referred to the Maxillo-Facial surgeons at the Royal Brisbane Hospital for further surgical attention to his jaw.  If untreated, these injuries would have caused permanent disfigurement.  They certainly caused significant pain at the time.”^[4]

10. [10]
    The applicant was also examined by Dr John Cosson on 1 January 2003 at the Royal Brisbane Hospital, after being transferred from Nambour Hospital Emergency Department. Dr Cosson stated in his report

“At the time of examination he had bruising to the face with numbness of the lower lip and an obvious malocclusion associated with a fractured mandible.  This fracture was confirmed on radiographs and the patient was taken to the operating theatre on January 2 2003.  At this time he underwent open reduction and internal fixation of his mandibular fracture and the lacerations to his left chin and right supraorbital region were sutured”.^[5]

Dr Cosson reviewed the applicant “…postoperatively on 6 January 2003 and again on 20 January 2003 where it was found that the he was recovering well”.^[6]

Mental or Nervous Shock

11. [11]
    The applicant also claims compensation for psychological injury arising out of the respondent’s conduct.

12. [12]
    The applicant was assessed by Barbara Anne McGuire, psychiatrist, on 13 September 2006 (3 years 9 months post incident). Dr McGuire has summarised the circumstances of the applicant sustaining his injuries and has concluded:

“He does suffer psychiatric disorder namely posttraumatic stress disorder to a moderate degree.  This has been present since the incident.  The likelihood is that his symptoms will persist for a matter of years but diminish over time.”^[7]

13. [13]
    Dr McGuire has noted:

“Had the incident not occurred he would be a great deal more confident.  He said prior to the incident he was easy going, never had any worries about walking in darkened streets.  Now he avoids going on the street even in daylight.  He is very cautious.  He is hypervigilant especially in the city, avoids making contact with strangers.  He lacks trust, mainly of young men his own age”.^[8]

14. [14]
    Dr McGuire further observes:

“At the time of incident he felt very angry. He thought it was unfair.  He notes that his wife has commented that he is more irritable and withdrawn since the incident.  It was in his mind every day for the first 12 months.  He said when he first saw his face in the mirror he vomited and felt that he had suffered a very serious injury.”^[9]

15. [15]
    The applicant has stated in his affidavit:

“I find myself becoming fearful if I am in a situation where violence might erupt.  If I am out at the pub or at a party, I am constantly watching all that is happening around me to see if there is going to be a fight.  I am so scared of being hit again and this time being killed”.^[10]

16. [16]
    It is now well accepted that 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 that of 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

17. [17]
    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).

18. [18]
    I have referred to the circumstances of the confrontation between the two parties to this application in paragraph [4] to [6] above. Obviously the applicant did not consent to the extent and/or severity of the respondent’s retaliation to the applicant’s action in “squeezing” the water balloon “close to” the respondent’s chest thereby wetting him. Nonetheless the applicant could have defused what was already becoming a potentially volatile situation by walking away from the respondent before he further aggravated the tension by his own somewhat provocative action and because of this I am satisfied that the applicant’s behaviour at least “…indirectly contributed to (his) injury”. I therefore assess such contribution at 10% and his quantum of compensation will be reduced accordingly.

Applicant’s submissions:

19. [19]
    The applicant claims compensation for the following categories of injury contained in Schedule 1 of the Act, namely:

1. (a)
   Item 1 – bruising/laceration (minor/moderate) (percentage of scheme maximum 1‑3 per cent);

2. (b)
   Item 7 – facial fracture (moderate) (percentage of scheme maximum 14-20 per cent); and

3. (c)
   Item 32 – Mental or nervous shock (moderate) (percentage of the scheme maximum 10-20 per cent).

The aggregate amount claimed under the above categories is $27,750.00.^[11]

Findings on categories of injuries:

20. [20]
    On the basis of the evidence before me, I make the following findings in respect of the categories of injuries under which the applicant’s respective injuries fall and the percentage applicable to those injuries under the Compensation Table of Schedule 1 to the Act namely:

1. (a)
   Item 1 – Bruising/laceration etc (minor/moderate) based upon the applicant’s own evidence contained in his affidavit and the evidence contained in Drs Powell and Cosson’s affidavits – percentage applicable 2%.

2. (b)
   Item 7 – Facial fracture (moderate) based upon the applicant’s own evidence contained in his affidavit and the evidence contained in Drs Powell and Cosson’s affidavits – percentage applicable 20%.

3. (c)
   Item 32 – Mental or nervous shock (moderate) based upon the applicant’s own evidence contained in his affidavit and the evidence contained in Dr McGuire’s affidavit – percentage applicable 15%.

21. [21]
    Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on 1 January 2003 as follows:

22. [22]
    Having regard to my findings in paragraph [18] above I therefore order that the respondent pay to the applicant the sum of $24,975.00 by way of compensation for the injuries he sustained.

23. [23]
    In accordance with section 31 of the Act, I make no order as to costs.