DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Andrew John Wren seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 25 October 2002 at Kingston, resulting in the respondent Wilson Conwell Gaulai pleading guilty before Judge Healy in the Beenleigh District Court on 23 February 2004 to one count of grievous bodily harm.  The respondent was sentenced to three years’ imprisonment, suspended after serving a period of 12 months’ imprisonment, with an operational period of four years.

The Facts

2. [2]
   The applicant was 22 at the relevant time. The applicant knew the respondent through dating the respondent’s cousin. On 25 October 2002, the applicant attended the Logan Centrelink office for an appointment at 9.30 am. On his way out the applicant met the respondent outside. The respondent was drinking Cola and Bourbon at the time. The respondent told the applicant he had just come back from the Gold Coast and had not had a chance to sleep yet. They discussed other matters and then they walked to the Woodridge Tavern and each purchased six cans of Bourbon and Cola. The applicant and the respondent then met up with a female friend known as Rigny, who later drove them to a pub in Slacks Creek. By the time they arrived at this location the applicant had completed five of his six cans. It is unknown how many the respondent had had by then.

3. [3]
   Once at the pub, the applicant and the respondent went their separate ways inside. The applicant met up with another mate, Mr Russell, and the respondent met up with other unidentified persons. At about 7.00 pm, the applicant and Mr Russell decided to call it a night and catch a taxi home. The respondent requested a ride as well, to be dropped off on their way. During the ride home plans changed, and the respondent returned to the applicant’s home with both the applicant and Mr Russell. The applicant and the respondent decided that they would walk to Woodridge together, and the applicant wanted to change before they left.  While he was changing, Mr Russell and the respondent had a minor altercation over Mr Russell accusing the respondent of stealing cigarettes.  Mr Russell physically removed the respondent from the dwelling, and the respondent then made verbal threats of harm towards Mr Russell and his family.  Mr Russell responded to the threats by striking the respondent in the face with a closed fist causing him to stumble backwards, and the respondent was then seen to leave the vicinity of the applicant’s dwelling.

4. [4]
   About 10 minutes later, the applicant left the house on foot with the intention of meeting up with his female friend Rigny. The applicant recalls walking a short distance along the footpath and then waking up in hospital two days later. An eye-witness observed what she described as an angry verbal altercation on the median strip, and she saw both the respondent and the applicant pushing and shoving at each other. The applicant was then pushed over and a number of other eye-witnesses observed the respondent striking, kicking and throwing an unidentified object at the applicant. Witnesses observed the respondent kicking and striking the applicant while he lay motionless on the ground. They also saw the respondent throw an object at either the applicant’s head or chest area while he lay motionless. One witness attempted to assist the applicant, but the respondent aggressively chased him away while yelling abuse. All of those witnesses who were actually driving by contacted emergency services on triple 0.

5. [5]
   The applicant was initially taken to the Logan Hospital, but was later transferred to the Princess Alexandra Hospital due to the extent of his injuries. At 2.00 am on 26 October 2002 the respondent was located by police.  He was wearing clothing described by the witnesses, and police were able to see blood on the clothing.  The blood was later determined to be the applicant’s.  The respondent was arrested and taken to the Logan Police Station.  The respondent declined to participate in an interview regarding the matter^[1]. 

Injuries

6. [6]
   The applicant’s injuries consisted of “major facial bruising; fractures of the zygoma maxilla, eye socket, and nose; extensive lacerations through the right eyebrow and over the nasal bridge; and injuries to both eyeballs. On 4 November 2002 the applicant underwent open reduction and internal fixation of the zygoma and attempted reattachment of the right anterior ligament, exploration and reconstruction. It was noted by Dr Blackstone that had the injuries been left untreated, they would have resulted in gross facial disfigurement, permanent double vision, and possible life-threatening infections.”^[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 as a result of a personal offence^[3].  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 Cheek, solicitor for the applicant, seeks compensation under eight items as follows:-

1. (1)
   Item 1 – bruising/laceration etc (minor/moderate) – 1%-3%;

Item 2 – bruising/laceration etc (severe) – 3%-5%

Ms Cheek submits that an award of 4% ($3,000) of the scheme maximum should be made under Item 2. Ms Cheek identifies the injuries under this item as including facial bruising and abrasions, lacerations to the eyebrow and nasal bridge and injuries to the eyeball on both the right and left sides.  The extent of the facial bruising and lacerations, especially to the right hand side of the face, are clearly evident from photographs taken shortly after the incident^[4].  The notes on the applicant’s admission to the Princess Alexandra Hospital reveal that at the time he was observed to have “major facial bruising”^[5].  Facial scarring was observed on 14 March 2007 by Dr Peter Hinchcliffe^[6] and on 20 February 2007 by Dr Robin Houston^[7].  The potential overlapping of the claim under either Items 1 or 2, and the claims under Items 6-8 (facial fracture), Item 4 (fractured nose), Items 27-28 (facial disfigurement or bodily scarring), and Item 9 (fractured skull/head injury) necessitate a careful examination of the appropriate award for compensation where a number of injuries have arisen from one episode. In particular, careful note needs to be taken by this court of the observation of McMurdo P in Riddle v Coffey^[8] where she stated 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.  The correct approach will always depend on what is fair and reasonable on the particular facts of each case, within limits of [COVA].”

2. (2)
   Item 6 - facial fracture (minor) – 8%-14%;

Item 7 – facial fracture (moderate) – 14%-20%; and

Item 8 – facial fracture (severe) – 20%-30%

Ms Cheek submits that the applicant suffered severe facial fractures as a result of this incident, principally the fractures to the zygoma (cheekbone) and maxilla (jaw bone) which required the surgical repair of the zygomatic, maxillary and nasal fractures, the attempted reattachment of the right medial canthal tendon and the repair of facial lacerations^[9], and that the applicant should be awarded 30% ($22,500) under Item 8.  The applicant states that the surgery involved having “four plates inserted around the eye and cheekbone area” and “an implant [which] was used to raise and improve on the disfigurement”^[10].  Dr Hinchcliffe considers that the applicant requires “surgery to repair the orbital floor fracture, reduce the prolapsed orbital contents, free up restricted extra ocular muscles, raise the right globe and reposition the right medial canthus” in order to “reduce the facial disfigurement and improve the field of single vision”^[11].  Dr Houston also considers that the applicant’s pain “associated with the right medial canthus region of his face … may improve if his … titanium plates were removed”.  Dr Houston expressed the view that the applicant’s “right infra orbital plate could also be removed at the same time and consideration could be given to correction of his traumatic telecanthus and consideration [given] to the use of an orbital implant, be it bone or something synthetic, such as Medpore to decrease [the applicant’s] orbital volume to correct his enophthalmos”.  Dr Houston considered that the applicant’s nasal bridge-line collapse, with lateral displacement of his nasal bones could be corrected with a rhinoplasty, but this could only be done “once the hardware (titanium plates) had been removed to facilitate the surgery”^[12].

9. [9]
   The applicant was hospitalised for approximately three weeks following the assault^[13].  It appears that the applicant is reluctant at this stage to undertake further surgery^[14].  The applicant has ongoing problems with hyperglobus, dystopia and anophthalmos (sunken eye)^[15].

10. [10]
    The applicant was in severe pain after the surgery and could only eat through a straw^[16].  The applicant continues to suffer pain around the middle area of the right ocular region, right sided facial sensation loss and pain on opening his jaw near the temporomandibular joint of mandible with clicking on occasion^[17].  The likely cost of surgical revision, including hospital costs, implant costs and anaesthetic fees (as well as the surgery) would be $20,000^[18].  In short, the applicant has suffered serious and debilitating facial fractures.

(3) Item 4 – fractured nose (displacement/surgery) – 8%-20%

11. [11]
    The applicant suffered a fractured nose during the assault^[19] and continues to suffer from “some loss of bridge-line projection of his nose and some flattening and widening of the nasal bones on the right and left side”^[20].  The “nasal-line bridge collapse, with lateral displacement of the bones” could be corrected with a rhinoplasty once the titanium plates have been removed^[21].  Dr Houston also notes that the applicant has developed a “right traumatic telecanthus”, which is “quite an obvious cosmetic deformity”^[22].  The applicant has also suffered from excessive secretion from the nose since the accident^[23]. Ms Cheek submits that the applicant should be awarded 15% ($11,250) under Item 4.

(4)Item 27 - facial disfigurement or bodily scarring (minor/moderate) - 2%-10%;

            Item 28 – facial disfigurement or bodily scarring (severe) – 10%-30%

12. [12]
    Ms Cheek submits that the disfiguration caused by the applicant’s sunken eye, broken nose, traumatic telecanthus and scarring (caused both by the injuries inflicted by the respondent and by the subsequent operations) amount to significant cosmetic deformity and should result in an award of 10% ($7,500) either at the top of the Item 27 range or the bottom of the Item 28 range. The applicant’s victim impact statement specifically refers to (what he describes as) “the harsh realities of my physical disfiguration”^[24].  The applicant also suffers from a misalignment of his eyes as a result of the offence^[25].

(5)Item 5 – loss or damage of the teeth – 1%-12%

13. [13]
    The applicant suffered a chip to the upper left 1 (21) incisor tooth on the distal incisal edge which is about “3 mm in vertical height and 8 mm in width, with lingual splitting of the tooth”^[26] which remains unrepaired. Ms Cheek submits that the applicant should be awarded 1% ($750) under Item 5.

(6) Item 29 – loss of vision (one eye) – 70%

14. [14]
    The applicant suffers from blurred vision and a blind spot which causes him problems with concentration^[27].  As at February 2007, the applicant was suffering “persistent double vision (diplopia) in his lateral field of view and pain around the medial side of his right eye”^[28].  Dr Houston also noted “a small area of right mid-lateral field visual defect”^[29].  Dr Hinchcliffe, ophthalmic surgeon, noted that the applicant’s right eye had “poor abduction (lateral gaze movement), apparently due primarily to restriction of globe rotation to the right, with possible associated under action of the right lateral rectus muscle, which pulls the eye laterally”.  Dr Hinchcliffe notes that the consequent “misalignment of the two eyes is present in right gaze, with both a horizontal and vertical component to the misalignment … the presence of a misalignment of variable size, depending on the direction of gaze, is known as an incomitant strabismus”^[30].  Dr Hinchcliffe considered that it was unlikely that the applicant would be able to obtain a driver’s licence because of his diplopia (double vision) which (in Dr Hinchcliffe’s view) might adversely affect the applicant’s employment prospects.  The applicant’s “stability when standing may also be affected at times” as a result of the diplopia^[31].

15. [15]
    Ms Cheek submits that the applicant should be awarded 5% ($3,750) under Item 29.

(7)Item 9 – fractured skull/head injury (no brain damage) – 5%-15%

16. [16]
    Ms Cheek submits that the applicant was concussed as a result of the blows to the head and has suffered a permanent memory loss associated with the incidents of the evening which resulted in him being unconscious for some days in a drug-induced coma in the Intensive Care Unit of the Princess Alexandra Hospital^[32].  The applicant reported to Ms Annmaree Wilson (psychologist) that he suffered “ongoing problems with his concentration and memory” and that he “constantly feels stressed and distracted”^[33].  The applicant also states that he continues to suffer from “frequent headaches”^[34].

17. [17]
    Ms Cheek submits that an appropriate award in the circumstances under Item 9 would be 8% ($6,000). Ms Cheek relies on the decision in Atkinson v McCallum [2002] QDC 328 where the court allowed 15% in circumstances where the applicant was rendered unconscious and suffered “post concussion syndrome with some superimposed syncopal episodes”^[35].

Global Assessment – Items 1-2, 4, 5, 6-8, 9, 27-28, 29

18. [18]
    As McMurdo P stated in Riddle v Coffey, it is important for an assessment to provide full compensation within the limits of COVA without encouraging or authorising duplication of compensation for what is effectively the same injury^[36].

19. [19]
    In my view, the essential compensable elements of the injuries suffered by the applicant were the facial fracture (Items 6-8), the fractured nose (displacement/surgery) (Item 4), the loss or damage to teeth (Item 5), the loss of vision of one eye (Item 29), and the mental or nervous shock (Items 31-33). In the circumstances, I consider that the bruising/laceration (Items 1-2), loss or damage of teeth (Item 5), the facial disfigurement/bodily scarring (Items 27-28), the loss of vision (one eye) (Item 29), and the fractured skull/head injury (Item 9) are more appropriately and effectively to be considered part of the compensation which should be awarded in respect of the facial fracture (Items 6-8) and fractured nose (Item 4). The mental or nervous shock should of course be dealt with separately.

20. [20]
    Accordingly, I propose to make the following awards:-

In respect of the facial fracture (Items 6-8), it is clear that this is an extremely serious example of such an injury (which also includes the bruising, teeth damage, facial disfigurement/scarring, and eye damage). Accordingly I award 30% ($22,500) under Item 8. The fractured nose (Item 4) is also a serious example of such an injury, and I consider an appropriate award to be 18% ($13,500) under Item 4.

(8) Item 31 – mental or nervous shock (minor) – 2%-10%;

Item 32 – mental or nervous shock (moderate) – 10%-20%;

Item 33 – mental or nervous shock (severe) – 20%-34%

21. [21]
    Ms Annmaree Wilson, psychologist, notes that the applicant “experienced acute post-traumatic stress after the act of violence” and notes further that the applicant “remains severely symptomatic”. Her clinical diagnosis, however is of Adjustment Disorder (with depressive and anxiety features) (DSM-IVR). Ms Wilson considers that the applicant “is chronically and severely disabled as all areas of [the applicant’s] functioning [have] been affected”. Ms Wilson notes further that the applicant “has suffered significant social, employment and emotional consequences of the act of violence [and] despite his tenacity and determination to continue to work, [the applicant’s] level of functioning in all areas of life is nowhere near that of a young man of his age”^[37].

22. [22]
    The applicant attests that since the offence that he is “fearful of social activities, confrontation and even leaving the house”, “still finds it quite difficult to talk about the assault”, … “often feel[s] teary, depressed, anxious, and find[s] it hard to sustain relationships with people because [he has] low self-esteem and [is] embarrassed about [his] injuries”^[38].  Ms Wilson considers that the applicant’s facial disfigurement “has had a very negative impact on [his] sense of self-esteem and self-worth”^[39] and the applicant has (as a result of the violence) employed “a number of inappropriate coping strategies, namely drug and alcohol abuse which place him at a great deal of risk”^[40].  The relationship in which the applicant was involved at the time of the violence ended and the applicant attributed this to his facial disfigurement and personality change^[41].

23. [23]
    Ms Cheek submits that an appropriate award under this item would be 25% of the scheme maximum. In all the circumstances, in particular given the diagnosis (Adjustment Disorder) and the chronic nature of his condition, it seems to me appropriate to make an award at the lower end of the range in Item 33 (mental or nervous shock (severe) – 20%-34%) and accordingly I award 25% ($18,750) under Item 33.

Contribution

24. [24]
    COVA s 25(7) provides that “in deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury”.  The applicant consumed a significant quantity of alcohol with the respondent and the applicant was changing his clothes when the respondent was involved in a “minor altercation” with a third person, Mr Russell, who was present at the applicant’s home when the applicant was changing his clothes.  However, the altercation, which resulted in the respondent being physically removed from the applicant’s dwelling, was an altercation between the respondent and Mr Russell, and the verbal threats made by the respondent were made towards Mr Russell. The response to those threats was constituted by Mr Russell striking the respondent in the face with a closed fist.  The brutal assault on the applicant by the respondent appears to have occurred a short distance from the applicant’s home while the applicant was walking to meet up with a female friend and, it could be inferred, was sparked by the respondent’s anger at being physically assaulted and ejected from the applicant’s house by Mr Russell.  In these circumstances, although there is an eye-witness observation of “an angry verbal altercation between the applicant and the respondent, in which each was pushing and shoving at each other”^[42], it appears to me on the available evidence that the applicant did not contribute to the injuries that he suffered.

Conclusion

25. [25]
    Accordingly, I order that the respondent Wilson Conwell Gaulai pay the applicant Andrew John Wren the sum of $54,750.