DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Ben Anthony Franklin, seeks compensation in respect of injuries suffered by him in an incident which occurred on 24 April 2004 at Reedy Creek, Gold Coast. This incident resulted in the respondent, Shane Trevor Timu, pleading guilty to one count of grievous bodily harm on 24 March 2006 at the Southport District Court before me. The respondent was sentenced to twelve months intensive correction order with special conditions that he undertake anger management, cognitive skills and drugs and alcohol treatment, counselling and/or programs.

Facts

2. [2]
   The respondent, who at the time was seventeen, attended an eighteenth birthday party at Reedy Creek on the Gold Coast on 23 April 2004. The applicant was also present at the same party. Both the applicant and the respondent were known to each other before the relevant incident. Both the applicant and the respondent consumed alcohol before and during the birthday party. The prosecutor on sentence outlined the facts as follows:-

“Some time during the evening [the respondent] formed the view that [the applicant] had treated a female friend of his badly and [the respondent] began offering [the applicant] to come outside for a fight.  [The applicant] states that he repeatedly said to [the respondent] that he did not want to fight and did not enter into any altercation with [the respondent].  [The applicant] states that at about midnight he left the party in company of a friend.  [The respondent] was also leaving and was seated in a vehicle outside the residential address waiting to leave.

[The respondent] saw [the applicant] and approached him.  According to [the applicant], [the respondent] has then struck [the applicant] to the right side of the face with a closed fist causing [the applicant] to bleed from the nose and mouth.  [The applicant] has then run away.  According to [the applicant], [the respondent] then got into a vehicle, pursued [the applicant] and then began to drive slowly alongside of him before getting out and approaching him.  [The respondent] has then struck [the applicant] a further five or six times in the face causing him to fall to the ground.  According to [the applicant], he remembers someone pulling [the respondent] off him and he made his way to a neighbouring house where Police were called.”^[1]

3. [3]
   During the course of the sentencing submissions, the prosecutor indicated that “an independent Crown witness states that he was at the party towards the end of the evening. People had generally consumed too much alcohol and were getting rather feisty. Someone had punched [a hole] in the door of the home. He stated that he was trying to calm people down, get them to leave, that he walked outside and found a crowd surrounding [the applicant]. He states that when he first saw [the applicant], [the applicant] had already had a bloody nose and he observed [the respondent] circle and punch [the applicant].”^[2]

Injuries

4. [4]
   The applicant received a fractured eye socket, a broken nose, dental injuries and a haematoma behind his right eye that later required surgery. The applicant required the extraction of a front tooth, pulled out because it was broken at the roots, as well as suffering four other chipped teeth. There was medical evidence that if the eye had not been dealt with surgically, it would have resulted in severe disfigurement and alteration of vision.^[3]

5. [5]
   Dr Jasmina Bajramovic attended on the applicant at the Emergency Department, Gold Coast Hospital at 4.15 am on 24 April 2004 (the applicant having initially presented at 1.55 am). Dr Bajramovic’s report indicates that:-

“[The applicant’s] right eye was very swollen and he was not able to open it spontaneously.  His visual acuity of his right eye was 24/6 normal is 6/6.  His pupil was 5mm wide and was not responsive to light.  It appeared to me that his right eye ball was 0.5cm-1cm bulging from the orbit.  His eye movements were normal.  Both nostrils were stained with blood and there was no active bleeding when I saw him.  Examination of his mouth revealed that the left upper first incisor tooth was loose.  His second right lower incisor tooth was fractured.”

Dr Bajramovic arranged to transfer the applicant to the Princess Alexandra Hospital in Brisbane for him to be assessed and treated by an eye specialist.^[4]

6. [6]
   Dr John Cosson, Maxillofacial Surgery Registrar, Princess Alexandra Hospital provided a report which (relevantly) states as follows: -

“[The applicant] was seen initially on 6 May 2004 following an alleged assault which had happened ten days prior to this date.  The patient states he received multiple blows and kicks to the right side of the face.  On examination he was suffering from severe periorbital ecchymosis and swelling but vision was reported to be grossly intact.  He did complain of diplopia on upwards and downwards gaze.  A CT scan of the facial region revealed a large orbital floor blow-out fracture of the right orbit.  The patient was reviewed by an ophthalmologist who agreed that there was no globe damage but there was an orbital fracture requiring operative intervention.  The patient was taken to the operating theatre on 12 May 2004 and underwent orbital reconstruction via a lower lid skin incision and replacement of the orbital floor with titanium mesh plate.  The patient was reviewed on 13 May and again on 20 May with a final review on 17 June 2004, which showed he was recovering well.  There was still some altered sensation around the ear, in the right cheek and side of nose associated with the fracture and some mild diplopia on upwards gaze.  The right globe appeared in good position although there was a slight degree of enophthalmus approximately 2mm present.

These injuries are consistent with a blow or multiple blows to the right side of the face as detailed by the patient and if not treated, would have resulted in severe disfigurement and an alteration of vision and as such would have caused or be likely to cause permanent injury to his health.”

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 convictions on indictment of a personal offence or injury 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

8. [8]
   Mr Kimmins on behalf on the applicant seeks compensation as follows: -

3. (1)
   Item 5 - Loss or Damage of Teeth – 1%-12%

9. [9]
   Mr Kimmins submits that, given the applicant suffered the loss of one tooth which had to be removed and the chipping of four other teeth, that an award should be made under this item of 10% of the scheme maximum ($7,500).

10. [10]
    There is no medical or dental evidence in respect of the teeth other than the initial examination by Dr Jasmina Bajramovic.^[5]  The applicant himself states that “with regard to my teeth, one tooth had to be removed and four others were chipped”.^[6]  The applicant states further that he still “suffer[s] from pain in [his] teeth”.^[7]  In the absence of any further medical or dental reports and/or assessments, it seems to me that an appropriate assessment under Item 5 for the loss of one tooth and chips to another four teeth would be 6% of the scheme maximum ($4,500).  Accordingly I award $4,500 under Item 5.   

3. (2)
   Item 27 - Facial Disfigurement or Bodily Scarring (Moderate) – 2%-10%

11. [11]
    Mr Kimmins submits that the applicant’s facial disfigurement, which continues to cause embarrassment, should result in an award of 10% ($7,500) under Item 27. However, in my view, the assessment of the applicant’s facial disfigurement would more appropriately be dealt with by a global assessment of the applicant’s injury under Item 8 (Facial Fracture (Severe)) and accordingly I make no award in respect of Item 27.

3. (3)
   Item 8 – Facial Fracture (Severe) – 20%-30%

12. [12]
    Mr Kimmins submits that an award of 25% ($18,750) should be made under this item. As indicated above, I consider that a single award should be made in respect of both the facial disfigurement/scarring and facial fracture. In that respect, it is clear that the applicant suffered a substantial facial fracture requiring surgery to the orbital floor of the right eye because of the “blow-out fracture”. The orbital floor was replaced with a titanium mesh plate. The applicant was, at the time of Dr John Cosson’s report^[8], still suffering altered sensation around the ear, in the right check and the side of the nose associated with the fracture as well as mild diplopia [double vision] on upwards gaze.  The applicant refers to having suffered a “broken nose”^[9], notes that his “right eye also droops slightly” and that he has “a scar where the operation [to repair the eye socket] was performed.”^[10]

13. [13]
    McMurdo P in Riddle v Coffey^[11] stated,

“[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 the limits of [COVA]”.

In the circumstances I consider it appropriate to award 25% ($18,750) under Item 8 (which as noted above also includes a component in respect of the facial disfigurement which would otherwise have been assessed under Item 27). 

3. (4)
   Item 29 – Loss of Vision (one eye) – 70%

14. [14]
    Mr Kimmins submits that an award of 30% ($22,500) should be made under this item. Clearly the applicant suffered a serious injury to his eye, including the fractured right eye socket and the haematoma behind the right eye, both of which required surgery. The report of Kate Johnson, optometrist, dated 12 June 2007^[12] notes that:-

“Fracture of the orbital floor can entrap the inferior rectus muscle, one of the six extraocular muscles attached to each eyeball, and cause restriction of up gaze. Indeed this is the case with [the applicant] – he suffers discomfort and diplopia on high up gaze as his R eyeball can not elevate (look up) to the normal level reached by the L eyeball. [The applicant] has not noticed any improvement in this discomfort and diplopia since recovering from the trauma – and it is unlikely to ever improve.”

Ms Johnson also noted that although there was a risk of alteration of the internal structure of the eyes, which can lead to increased intraocular pressure, there was a very minimal risk of the applicant developing post trauma glaucoma.^[13]

15. [15]
    In the circumstances, and taking into account the award made under Item 8 (Facial Fracture (Severe)), I consider that an appropriate award under Item 29 is 20% ($15,000).

3. (6)
   Item 22 – Mental or Nervous Shock (Severe) – 20%-34%

16. [16]
    Mr Kimmins submits that an order of 25% of the scheme maximum ($18,750) should be made under this item. The applicant was examined by Alan Chittenden, Registered Psychologist on 6 December 2006 and Mr Chittenden provided a report dated 23 January 2007^[14].  Mr Chittenden notes that:-

“Following the incident [the applicant] was extremely traumatised by what had occurred and extremely frightened and concerned that he might lose the sight of his eye.  [The applicant] found it difficult to cope with pain and admits that he became irritable and angry, and as a result of his behaviour, found he was losing friends and associates who maintained he was not the same person as before the incident. At times [the applicant] became quite depressed, fearful of what might happen to him, the future if his injuries did not heal and his faculties did not return to pre-incident level.”^[15]

Mr Chittenden notes that the applicant was “no doubt…severely traumatised by what occurred and this has left him still feeling very anxious in situations where there are particularly young males present and in places where alcohol is served”, and notes further that the applicant “has suffered nightmares and flashbacks as a result of what occurred”^[16]. However, Mr Chittenden does not believe the applicant “fulfils the full criteria of post-traumatic stress disorder” and considers that he should be classified as “suffering from an adjustment disorder with mixed anxiety and depressed mood – DSM IV 309.28”.^[17]  Mr Chittenden considered that the applicant’s level of trauma was initially quite severe but would now be in the moderate classification^[18].  Mr Chittenden expressed the view that the applicant would benefit from treatment with a clinical psychologist skilled in working with traumatised people, undergoing treatment including relaxation therapy and cognitive behavioural techniques, undertaking a years’ treatment, with twelve to fifteen sessions commencing on a weekly basis.  Mr Chittenden also believes that correction of the applicant’s dental problems would have a positive effect on his psychological well being.  Mr Chittenden notes that the scar on the applicant’s right eye is a constant reminder of what occurred when he looks at himself in the mirror and therefore he will never completely overcome the attack made upon him and there will always be residual symptoms, both physical and psychological, for the rest of the applicant’s life.^[19]

17. [17]
    In the circumstances I consider that an appropriate award for mental and nervous shock should be at the bottom of the severe range i.e. 20% ($15,000). Accordingly I award $15,000 under Item 22.

Contribution

18. [18]
    I do not consider that the applicant has in anyway contributed to his own injury.^[20]

Conclusion

19. [19]
    Accordingly I order that the respondent Shane Trevor Timu pay the applicant Ben Anthony Franklin the sum of $53,250.