Fleming v McBridge[2007] QDC 220

[2007] QDC 220

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBERTSON

No D14 of 2007

MAROOCHYDORE

DATE 14/09/2007

JUDGMENT

HIS HONOUR:  On the 22nd of November 2006 in the Gympie District Court Elias James McBride pleaded guilty to causing grievous bodily harm to the applicant, Tod Fleming, at Gympie on the 19th of June 2005, and Craig Antony Williams pleaded guilty to assaulting Mr Fleming on the same occasion and causing him bodily harm.

The sentence proceeded on the basis of a schedule of agreed facts which binds me now. Mr Fleming seeks compensation pursuant to the Criminal Offence Victims Act 1995.

McBride was sentenced to a term of imprisonment and Williams was fined.

Craig Anthony Williams was represented this morning before me by Mr Ryan of counsel and, sensibly, in relation to his participation, to which I'll refer in a few moments, the parties have settled on the figure of $2,200, and I will order Craig Antony Williams to pay to Tod Fleming the sum of $2,200.

Mr Fleming was 38 at the time of the incident. He had consumed some alcohol that night with his wife and friends and the two respondents had also been drinking with their female companions. The groups, in a general sense, encountered each other on a public street and it appears, from the agreed set of facts, that a misunderstanding arose which led to aggression, initially a completely unexpected punch by McBride, which struck Mr Fleming's left cheek which McBride had thrown over the shoulder of Mr Fleming's friend, Mr Loweche.

Mr Williams's female friend then intervened to try and stop any further violence between the males. All the males were clearly upset and angry and suddenly Williams punched Mr Fleming on the nose and he immediately felt a sharp pain in his nose. He then went into a defensive position and he was attacked viciously by McBride and he was punched further to the face, both while he was standing and after he fell. Williams's plea of guilty was accepted on the basis that he delivered only the one punch to the nose.

Mr Fleming suffered multiple fractures to his jaw, eye socket and cheeks, and minor fractures to his nose. He was transferred to the Royal Brisbane Hospital where he had facial surgery and he still suffers significant impairment as a direct consequence of the injury. He has also suffered a significant mental or nervous shock injury described by Psychiatrist, Dr Cantor, in his report dated the 21st of December 2006, as a chronic Post Traumatic Stress Disorder of moderate severity. Dr Cantor recommends psychotherapy and says "even if he receives and responds well to treatment I doubt if his eventual impairment will improve to better than class 2 mild impairment."  I have also been favoured with the report from Professor Monsour, a clinical professor of surgery at the University of Queensland, who reviewed the medical files of the applicant, and I accept his opinion.

Mr Fleming is entitled to the following percentages under the schedule to the Criminal Offence Victims Act. Under item 33 he is entitled to 20 percent of the scheme maximum; under item 8, as a result of the severe facial fractures he is entitled to 20 percent of the scheme maximum; and he is also entitled to an award under item 27 of $1,500, that is 2 percent of the scheme maximum; and I will also allow him 3 percent for general bruising and abrasions not covered by the specific injuries under item 1. I have specifically excluded from the assessment, in relation to McBride, the nasal injury. So that comes to 45 percent. I will order Elias James McBride to pay to Mr Fleming the sum of $33,750.

I should say that Mr Barclay helpfully refers to the possible application of section 25(7) of the Act in view of the comments that I made in my sentencing remarks, however, when one has regard to the approach to contribution under this Act and in particular the remarks of various members of the Court of Appeal in Hohn -v- King [2004] QCA 254 and the associated case in relation to which judgment was given on the same day, namely the 30th of July 2004, of Johnson -v- Bancroft.

Particularly having regard to what Chesterman J said in his Honour's judgment at paragraph 105 of the judgment, in my view there is no basis to reduce the award under section 25(7) of the Act.