Newham v H[2007] QDC 128

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Richard Kevin Newham seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 13 November 2004. The respondents, AH and AF, were both juveniles at the time the offence was committed. AH entered a plea of guilty in the Beenleigh Children’s Court on 5 August 2005 and was sentenced by Judge Tutt in that court on 3 October 2005 in respect of one count of assault occasioning bodily harm in company. The sentence imposed was two years probation and 150 hours community service. The respondent AF pleaded guilty in the Beenleigh District Court on 30 September 2005 and was sentenced on 24 January 2006 by Judge Tutt to 18 months imprisonment, wholly suspended, with an operational period of three years.

Facts

2. [2]
   The applicant and his girlfriend, Ms Debbie Harper, were walking along Karri Avenue at Woodridge in the early hours of Saturday, 13 November 2004.  They had been out for the evening and were in front of their house, by their front fence, when they were approached by the two respondents.  Both respondents had attended a party in the street that night and had consumed a considerable amount of alcohol prior to the incident.  Both respondents greeted the applicant and Ms Harper, and then attacked both the applicant and Ms Harper without warning.  The respondent AF punched the applicant, causing him to fall to the ground then both respondents then punched and kicked the applicant while he was on the ground.  Ms Harper went to the applicant’s assistance and after words were exchanged, she too was knocked to the ground and kicked by both respondents while she was on the ground.  The respondents then decamped with Ms Harper’s handbag and returned to the party they had previously been attending^[1].

Injuries

3. [3]
   The applicant sustained the following injuries which were documented on his arrival at the Emergency Department of the Logan Hospital by ambulance at 2.20 am on 13 November 2004^[2], namely:

3. (1)
   Subconjunctival haemorrhage left eye

3. (2)
   Bruising to the left side of the face

3. (3)
   Haematoma to the back of the head

3. (4)
   Abrasions to the arms and elbows

3. (5)
   Fracture of the right ninth rib

3. (6)
   Fractured nose

4. [4]
   The medical report also notes that “No specific treatment was required” and the applicant was discharged from the Emergency Department at 8.15 am.

The Law

5. [5]
   This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”).  COVA commenced operation on 18 December 1995 and provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence.  R v Ward; ex parte Dooley [2001] 2 Qd R 436 indicates that the assessment of compensation should proceed pursuant to COVA s 22(4) by scaling within the ranges set out in the compensation table (Schedule 1) for the relevant injuries.  In particular, the fixing of compensation should proceed by assessing the seriousness of a particular injury in comparison with the “most serious” case in respect of each individual item in Schedule 1.  Riddle v Coffey [2002] 133 A Crim R 220; [2002] QCA 337 is authority for the proposition that COVA s 26, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.

Compensation

6. [6]
   Mr Simms, solicitor for the applicant, seeks compensation under three items as follows:

(1) Item 1 - Bruising/laceration etc minor/moderate

The facts indicate that the applicant was punched to the ground, then punched and kicked to his head and body on the ground. The medical report of Dr David Lewis-Driver^[3] indicates that the applicant suffered:-

• subconjunctival haemorrhage left eye;

• bruising to the left side of the face;

• haematoma to the back of the head;

• abrasions to the arms and elbows.

In the applicant’s police statement he describes himself as having suffered “various scratches, bruises and marks, including shoe print marks on [his] head”.^[4]

Mr Simms submits that the applicant should be awarded 3% of the scheme maximum ($2,250) under this item.  I accept this submission, and accordingly I award 3% ($2,250) pursuant to Schedule 1 Item 1.

(2) Item 3 – Fractured nose (no displacement)

The evidence placed before the court in respect of this item is relatively limited.  The medical report^[5] refers (baldly) to the applicant’s presentation at the Logan Hospital with (among other injuries) a “fractured nose”.  The applicant’s affidavit^[6] states, “My nose was sore for some weeks after the assault”.

Mr Simms submits that an appropriate award for this injury would be at the lower end of the relevant scale (i.e. an award of 5%).  I accept this submission and accordingly I award 5% ($3,750) pursuant to Schedule 1 Item 3.

(3) Item 9 – Head injury (no brain damage)

Mr Simms submits that the injuries which were assessed under Items 1 and 3 above (subconjunctival haemorrhage left eye, bruising to the left side of the face, haematoma to the back of the head, fractured nose) could also be relied upon to support a claim for a “closed head injury, albeit of a minor injury”^[7].  Although the applicant in his police statement refers to having “suffered headaches for a while but there doesn't seem to be any ongoing medical problems”^[8], and in his affidavit^[9] refers to being “rendered unconscious after being hit and kicked to the head and body”, it is my view that there is no medical support in the material filed for an assertion that the applicant suffered a head injury which could be distinguished from the injuries which are relied on for awards under Items 1 and 3.  In any event, Riddle v Coffey^[10] makes it clear that COVA “intends to provide full compensation within the limits it imposes; it does not encourage or authorise duplication of compensation for what is effectively the same injury.”^[11]  Accordingly, I make no award under Schedule 1 Item 9.

(4) Item 21 – Neck/back/chest injury (minor)

The medical report of Dr Lewis-Driver^[12] indicates that the applicant suffered a “fracture of the right 9^th rib”.  The applicant in an affidavit dated 3 October 2005^[13] indicates that he “couldn't sit or lie down properly, as the pain on [his] ribs was immense” and states that this injury (presumably in addition to his other injuries) meant that he was “very uncomfortable for a number of weeks until the injuries finally healed”.  The applicant took two weeks off work and performed light duties when he returned to work, for a further four weeks.  The applicant attests further that “as a result of the assault I suffered soreness of the rib and chest area.  This affected me in many ways and for some weeks after the assault I encountered problems with coughing, sneezing and sleeping.”^[14].

Mr Simms submits that the rib fracture “would have had a not insignificant impact upon the life of the applicant and acted in a most debilitating fashion upon his everyday functioning”^[15], and consequently submits that the applicant should be awarded 7% of the scheme maximum ($5,250) under this item.  Given the nature of the injury and the period of time over which the applicant was in pain and discomfort while recovering from this particular aspect of his injuries, I accept that an award of 7% is appropriate.  Accordingly I award 7 per cent ($5,250) under Schedule 1 Item 21.

Contribution

7. [7]
   It is clear that the applicant did not contribute in any way to his own injuries^[16].

Apportionment

8. [8]
   Mr Simms submits (and I accept) that in the light of the facts outlined by the prosecution on the separate sentence proceedings involving these two respondents^[17]:

“It is difficult to discern from the facts the individual culpability of each respondent.”

Mr Simms points out that on the facts presented, it appears that the respondent AH initially punched the applicant to the face and caused him to fall to the ground, but from that point on the applicant was rendered unconscious after a combined assault upon him by both respondents which involved punching and kicking.

9. [9]
   In the circumstances I consider it appropriate to make an order for joint liability^[18] of the two respondents.

Conclusion

10. [10]
    Accordingly I order that the respondents AH and AF pay the applicant Richard Kevin Newham the sum of $11,250.