DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Mark Newman seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 15^th July 2004 at Nanango, resulting in the respondent Neil Smith pleading guilty before Senior Judge Trafford-Walker in the Kingaroy District Court on 14 November 2005 to one count of grievous bodily harm. The respondent was sentenced to 18 months imprisonment, wholly suspended for an operational period of two years.

Facts

2. [2]
   The respondent is married to the applicant’s wife’s daughter (i.e. the applicant’s step daughter) and the incident which lead to the applicant’s injury occurred on the night before the funeral of the mother of the applicant’s wife. A group of family members was to have arrived at the residence of the applicant and his wife to speak to the priest conducting the funeral service the next day, but the family members did not arrive as arranged at 7.30pm. The priest stayed until 9.30pm discussing funeral arrangements with the applicant, his wife, and another relative, but then left.

3. [3]
   Shortly after the priest left, five family members arrived at the applicant’s residence and knocked on the back door where the patio light was on. The applicant’s wife, Marianne, answered the door and she was quickly followed by the applicant and another relative, Richard Peacock, who was staying with the applicant and his wife. There was a verbal argument between one of the family group, Jeffery Peacock, and the applicant’s wife.

4. [4]
   The applicant was so concerned about the altercation between Jeffery Peacock and the applicant’s wife, Marianne, that he placed himself between his wife and Jeffery Peacock to ensure that she would not be hurt. The applicant indicated that Jeffery Peacock was not welcome, that he had to leave and placed his hand on Jeffery Peacock’s shoulder to encourage him to leave. Jeffery Peacock then struck the applicant twice to the right side of his face, firstly with a “king hit” and then again to the applicant’s jaw. The applicant attempted to defend himself, and the respondent then entered the fray. The respondent struck the applicant with a closed fist on three separate occasions, twice hitting him in the chest and once in the arm. The respondent and Jeffery Peacock then grabbed the applicant’s arm, and the respondent, who had the applicant’s right arm, used the palm of his hand against the applicant’s neck to force him into a bent over position, at which stage Jeffery Peacock, who had control of the applicant’s left arm, preceded to use his knee to hit the applicant in the area of the face. The applicant began to suffer blurred vision and started to lose consciousness. The applicant recalls before falling over that someone hit him over the head with a broom handle or a rake handle. As the applicant was slipping in and out of consciousness, he got off the ground and ran inside.

5. [5]
   The applicant’s wife, who was making attempts to stop the fight verbally, was held back by Jeffery Peacock’s partner Trish. The applicant’s wife managed to break free and ran inside the house and dialled the police. However, a neighbour had already contacted the police and the fight ended when the neighbour informed those at the applicant’s property that police were attending. The five relatives who had arrived, including the respondent, Mr Barnes, Ms Sarah Peacock, Jeffery Peacock and Jeffery Peacock’s partner Trish, then left by car. The applicant was by this stage collapsed on the floor in his house.

6. [6]
   The applicant was taken to Nanango Hospital by ambulance. Because of concerns for the applicant’s welfare, the applicant was airlifted to Toowoomba Base Hospital.^[1]

Injuries

7. [7]
   The applicant sustained the following injuries in altercation:

1. Fracture of the orbital floor of the left eye, with nerve damage;

2. Internal injury within the left eye with signs of iris trauma;

3. Fractured nose;^[2] and

4. Bruising to both temples, ribs and chest area.

8. [8]
   I note, however, although the applicant’s victim impact statement^[3] refers to the “broken nose”, none of the three medical reports relied upon in this application^[4] make any reference to a broken nose. In addition, the prosecutor on sentence made no reference to any broken nose by the applicant, although the three doctor’s statements were tendered as exhibit 3 at the sentence. As Jerrard JA stated in Lewis v Williams^[5], “[w]hat is required is proof to the satisfaction of the judge making the order, pursuant to the standard of proof prescribed by s 30 of the Act, that the injury for which compensation is sought was suffered because of the commission of the personal offence of which the respondent had been convicted on indictment”. In the circumstances, I am not satisfied on the balance of probabilities (COVA s 30(2)) that the applicant suffered a fractured nose as a result of the personal offence (grievous bodily harm) committed by the respondent. Accordingly, I do not consider that this court can proceed to assess compensation in respect of a fractured nose.

Criminal Law

9. [9]
   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 Qld 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 one criminal compensation order for one episode of injury without duplication.

Compensation

10. [10]
    Mr Murdoch, solicitor for the applicant, seeks compensation under four items as follows:

1. Item 1: bruising/laceration (minor/moderate) (1-3%) The prosecution sentencing submissions indicate that when the applicant presented at the Nanango Hospital, he had “bruising to both temples and swelling of the face and nose.”^[6]  There appears to be no other reference in the material provided on this application to other bruising with the exception of the applicant’s police statement^[7]. I have viewed the photographs tendered on the sentence^[8]. Mr Murdoch submits that an appropriate award for the totalling of these injuries would be an award of 3% ($2,250.00) which places the assessment at the top of this item (bruising/laceration/etc - minor/moderate). In the circumstances although it is difficult to reach a conclusion given the paucity of the material, it does appear to me reasonable to award 3% ($2,250) under this item.

2. Item 3: fractured nose (nose displacement) (3-5%) As set out in paragraph [8] above, although the assertion by the applicant that he suffered a fractured nose is referred to in the applicant’s victim impact statement^[9], and the applicant’s original police statement^[10], there is no medical evidence whatsoever to support the applicant’s assertion that he suffered a fractured nose in this assault. Accordingly I make no award under this item.

3. Item 8: facial fracture (severe) (20-30%) The report of Dr Robin Houston, Consultant Maxillo-facial Surgeon^[11] states that “On CT scan examination, [the applicant] had a left orbital floor blow out fracture and there was left facial anaesthesia and [the applicant] had decreased acuity of sensation. [The applicant] had difficulty distinguishing from sharp to blunt. …Because of the blow out fracture, [the applicant’s] orbital floor was explored on 25 June 2004… At review on 30^th July 2004, [the applicant] had good vision in his left eye… good colour vision and good peripheral field, [had] no evidence of diplopia [double vision] [but] did have some decreased acuity of sensation on the left [side of the] face”. Dr Houston was of the opinion that if the injury had been left untreated it “would have caused permanent disability, double vision, and facial anaesthesia”.

Dr Ashley Seawright, Ophthalmologist in his report dated 20 July 2004^[12] indicated that as at 24 June 2004 the applicant had “persistent pain in and around his left eye associated with light sensitivity and blurred vision”, with x-rays taken at the Toowoomba Base Hospital revealing “eye socket wall fractures”, that the applicant had reduced vision in his left eye and “had evidence of internal injury within the left eye with signs of iris trauma, dilated pupil and blood inside his left eye”.

The report of Dr John Harrison dated 29 January 2007^[13] describes the injuries as “significant” causing “pain and suffering” and noted that the “fracture of the eye socket” if “left untreated [might] well have caused significant double vision, on a permanent basis [and] may have also resulted in enophthalamos (recession of the eye into the socket).”

However, Dr Harrison reports that “following corrective surgery, there is now minimal disability” although there is “persisted slight blurring of left vision, which is correctable with glasses”. Dr Harrison offers the opinion that “it is likely that [the slight blurring of left vision] has occurred because of the blunt trauma to the eye ball, causing subtle alterations in the ability to focus.”  Dr Harrison also noted a “persistent but mild alteration in the sensation of the left side of the face which is likely to be permanent”. Dr Harrison assessed the applicant’s “vision acuity impairment rating for the left eye as 5% without glasses” and assessed the applicant’s “overall acuity related impairment [at] 1%” which Dr Harrison considered “minor”.

Given the nature of the injuries (a left orbital blow out fracture requiring surgery) balanced against the almost complete recovery of the applicant, as documented by Dr John Harrison, it is in my view appropriate to assess the applicant’s injuries at the bottom of the applicable range for Item 8 (facial fracture (severe)). Accordingly I award the applicant 20% ($15,000.00) pursuant to item 8.

4. Mental or nervous shock (2-10%) The applicant was assessed by psychologist Rachelle Hampson^[14] as suffering from post traumatic stress disorder which had decreased in part in the three years between when the incident occurred (15 July 2004) and when the applicant was examined by Ms Hampson (10 October and 2 November 2006). The post traumatic stress disorder was assessed by Ms Hampson to be “a mild to low end moderate level of mental or nervous shock”, and Ms Hampson considered that the applicant would benefit from ongoing counselling to continue to manage his symptoms of post traumatic stress. Ms Hampson recommended five sessions of counselling at a total sum of $976.00.^[15]

In the circumstances, I consider that an appropriate award under Item 31 is 10% of the scheme maximum ($7,500.00).

Contribution

11. [11]
    I do not consider that the applicant has contributed in any way to his own injuries.^[16]

Co offenders

12. [12]
    The facts as outlined on the sentence indicate that the respondent was the lesser of two offenders who appear to have been jointly responsible for the applicant’s injuries, although the indictment to which the respondent pleaded was amended to refer only to the respondent and not to the asserted co-offender, Jeffery Peacock. In the circumstances, it would, in my view, be a pointless exercise to attempt to untangle the causation issues as between the respondent and Jeffery Peacock. It is appropriate, therefore, to make a single compensation order in respect of the entire assessment against this respondent.

Conclusion

13. [13]
    Accordingly I order that the respondent Neil Scott Smith pay the applicant Mark Raymond Newman the sum of $24,750.