DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Shane Andrew Robinson seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 21 September 2002 at Boronia Heights, resulting in the respondent Leonard James Cahill pleading guilty before Judge Healy in the Beenleigh District Court on 27 February 2004 to one count of assault occasioning bodily harm. The respondent was sentenced to a 12 month intensive correction order.

Facts

2. [2]
   The applicant was, at the time of the offence, a 33 year old tow truck driver and was married to the respondent’s sister. At the time of the offence, the respondent was residing with his family in a caravan at the rear of the applicant’s property, but on the day of the offence, was in the process of packing up to move. The applicant arrived home around midday and helped the respondent pack up his belongings. Shortly into this process, the respondent asked the applicant to come into the annexe of the caravan to help him with a broken door lock. As the applicant entered the annexe, the respondent jumped him, put him in a choker hold, then threw him around the annexe. The applicant was then lifted off the ground. The applicant was pinned against the side of the caravan and lost control of his bowels. He then dropped to the ground. The respondent grabbed him by the hair and began punching him several times around the head and to the left side of his ribs. The respondent then kicked the applicant in the torso, causing the applicant to have difficulty breathing.

3. [3]
   The applicant estimates that the assault went on for around 15 minutes, before the applicant’s wife, Brenda Gray, came into the annexe. Ms Gray says that she heard the respondent say something like “I really should have fucked him. I should have done more”. The applicant managed to get himself back to the house where he saw that one eye was bloodshot and that his mouth and nose were bleeding. An ambulance was called, and while the applicant was being attended to, the respondent was heard by ambulance officers to say “This is what you get when you fuck with my sister. What a waste of oxygen. I should have pulled the mask off him so I could give him some more injuries. Then he’ll really need an ambulance and the oxygen.”

4. [4]
   The applicant was transported to the Logan Hospital where he received treatment for bruising to his face and upper body and a broken lower rib and punctured lung. The punctured lung was found to be of a slow-leaking nature, and would have dissipated itself over time.^[1]

Injuries

5. [5]
   The applicant presented to the Logan Hospital Emergency Department on 21 September 2002 at 4:12 pm. Doctor Nyland, who treated the applicant noted the following injuries:- 

3. (1)
   Pain to the left side of the jaw; 

3. (2)
   Fracture of the left sixth rib;

3. (3)
   Bruising around the left eye;

3. (4)
   Subconjunctival haemorrhage left eye.

6. [6]
   The applicant received analgesic tablets, then a morphine injection, then a toradol injection in successive attempts to relieve the applicant’s pain. The applicant was discharged at 11:00 pm on 21 September 2002 and was x-rayed on 23 September 2002. X-rays revealed no fracture of the jaw, but a punctured lung on the left side, presumed due to the fractured rib.^[2]

The law

7. [7]
   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 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 with comparison to 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

8. [8]
   Ms Moran, who appears for the applicant, seeks compensation under two items as follows:-

3. (1)
   Item 1 – bruising/laceration etc, (mild/moderate) – 1%-3%

9. [9]
   Ms Moran submits that the bruising to the jaw and the bruising to the left eye should be assessed under Item 1 at 3% ($2,250.00). Noting that the bruising to the left eye also caused a subconjunctival haemorrhage to the left eye,^[3] but taking into account the medical assessment that these soft tissue injuries would “resolve without any significant therapy,”^[4] it seems entirely appropriate that I should award 3% under Item 1. Accordingly I award 3% ($2,250.00) pursuant to Item 1.

3. (2)
   Item 22 - neck/back/chest injury (moderate) – 5%-10%

10. [10]
    The fracture to the applicant’s left sixth rib was noted on his presentation at the Logan Hospital on 21 September 2002, and the punctured lung was discovered when he returned to the Logan Hospital on 23 September 2002.^[5] Dr Ronald Kerr notes that the fractured left sixth rib “resolved along standard lines with an entirely satisfactory result” and further that the “pneumothorax [punctured lung] was aspirated and subsequently followed up, without complication and with an entirely satisfactory result.”^[6] Dr Kerr noted that some “minor abnormalities [on pulmonary function tests conducted in 2007] were not related to the injuries sustained in the assault.”^[7]

11. [11]
    In the circumstances, taking into account the applicant’s report that he was “out of work for about nine months after the attack due to the injuries that [he received] which were to the ribs and to the left side of [his] head”^[8], it seems appropriate to assess the applicant’s fractured rib and punctured lung under this item at the upper end of the moderate range (i.e. 10%). Accordingly I award 10% ($7,500.00) pursuant to Item 22.

12. [12]
    I note that despite the physical injuries suffered by the applicant during this attack, there has been no evidence of, nor any claim for compensation based on mental or nervous shock.

Contribution

13. [13]
    The applicant has not contributed in any way to his own injuries.^[9]

Conclusion

14. [14]
    Accordingly I order that the respondent Leonard James Cahill pay the applicant Shane Andrew Robinson the sum of $9,750.00.