DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Gary Robert Horton seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 6 January 2003 at Eagleby, resulting in the respondent pleading guilty before Judge Nase in the District Court at Beenleigh on 16 March 2004 to a single count of grievous bodily harm. The applicant was sentenced to 2 years imprisonment, suspended after serving a period of 8 months imprisonment, with an operational period of 18 months.

Facts

2. [2]
   The applicant had, at the time of the incident, known the respondent for around 3 years. At about 7.15am on Monday 6 January 2003 the applicant was walking home from a shop when he saw the respondent pull over in his car near to the front of the applicant’s home.

3. [3]
   “[The applicant] looked towards the car and he says he saw [the respondent] sitting in the driver’s seat, running his fingers across his throat in what [the applicant] thought was a threatening manner. [The applicant] walked towards [the respondent] and [the respondent] got out and stood beside his car. [The applicant] said ‘what is your problem’ to which [the respondent] replied ‘you, your wife and Katie are nothing but fucking dogs’.”

4. [4]
   “[The respondent] got back in his car, drove off and skidded to a stop. [The respondent] reversed back towards [the applicant’s] home. [The applicant] says he ran inside to tell Katie that [the respondent] was there. As [the applicant] ran back outside of the house … [the applicant] says he grabbed an aluminium baseball bat from inside the house. [The respondent] kicked the front gate open to come towards [the applicant] and then swung a wooden handle towards [the applicant’s] head… [The applicant] says the wooden handle was about 3½ft to 4ft in length with a lump at the end, similar to an axe handle.”

5. [5]
   “[The applicant] raised his arm to fend off the blow and the bat hit his left forearm, causing a fracture. [The applicant] report[ed] feeling a burning sensation before his fingers and arm went numb. [The applicant] fell to his knees and grabbed his arm in pain. [The applicant] says he couldn’t feel his legs, he thinks he must have passed out. [The applicant] next remembers sitting on the kitchen floor and ringing 000 for help.”^[1]      

Injuries

6. [6]
   The applicant was conveyed to the Logan Hospital by ambulance where the following injuries were noted by Dr Michael Cameron, Staff Specialist in emergency medicine, Logan Hospital, namely:-

3. (1)
   Fractures of the spinous processors of cervical vertebra C3, C4 & C5 (although the C5 fracture was thought to relate to a previous injury);

3. (2)
   An undisplaced fracture of the shaft of the left ulna.^[2]

7. [7]
   The applicant was discharged on 7 January 2003 with his left arm having been placed in a cast and his neck injury treated by immobilisation via a cervical collar. The fracture of the left ulna was treated by way of a bone graft and internal fixation procedure following the non union of the fracture, and required an admission to the Logan Hospital for this operation and follow up treatment between 24 and 26 July 2003.^[3] 

The Law

8. [8]
   This is an application under s 24 of the Criminal Offence Victims Act 1995 (“COVA”).  COVA commenced 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

9. [9]
   Mr Bagley, Counsel for the applicant seeks compensation under 3 items as follows:-

1. (1)
   Item 16 – fracture/loss of use of arm/wrist (displaced and immobilised) – 8%-30% 

Mr Bagley submits that the arm fracture did not knit properly and required an operation for a bone graft which proceeded 24 – 26 July 2003.  The applicant had a cast on his arm for approximately twelve months after the incident and suffered pain and discomfort, was unable to sleep properly and had to be assisted with toiletry and washing himself.^[4]  The fractured arm and a consequent addiction to opioids severely reduced the applicant’s ability to obtain employment^[5].  Mr Bagley submits that an award of 22% ($16,500) would be appropriate given the serious nature of the fracture, the consequent necessity for a bone graft operation, and the pain and discomfort incurred by the applicant having to wear a cast for some twelve months.  I accept Mr Bagley’s submissions and accordingly I award 22% ($16,500) under Item 16.

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

The applicant suffered fractures of the spinous processes of cervical vertebrae C3 and C4 (a fracture of C5 was considered by treating doctors to have related to a previous injury)^[6].  Mr Bagley submits that although there were no surgical procedures in respect of the vertebrae injuries, the applicant required treatment with painkillers to the extent that he became addicted to opioids for some eighteen months and consequently required methadone treatment.^[7]  Mr Bagley submits in the circumstances that an award of 8% ($6,000) would be appropriate in respect of the totality of the injuries suffered by the applicant to his cervical spine.  I accept these submissions, and accordingly I award 8% ($6,000) under Item 22.

3. (3)
   Item 33 – mental or nervous shock (severe) – 20%-34%

The applicant was examined by Dr Gary Larder who provided a report dated 30 August 2005.^[8]  Dr Larder diagnoses the applicant as suffering from “a severe anxiety disorder, sleep disorder and drug dependence.”  Dr Larder considers that the applicant’s prognosis is “poor” and states that “there is an indefinite risk of a deterioration of anxiety features and of a depressive illness, particularly if work stressors are particularly disturbing.”^[9]  The issue is complicated by a range of life problems suffered by the applicant in addition to the injuries (both physical and psychiatric) suffered as a result of the incident involving the respondent.  These include head and brain injury from a shotgun accident incurred when the applicant was in his middle twenties (for which he was on a disability pension); a seriously dysfunctional childhood with an alcoholic and physically abusive father; a history of heroin addiction, and intravenous drug use from his teenage years with consequent Hepatitis C; periods in and out of jail from the age of eighteen to twenty nine; a limited work history; life threatening pneumonia; psychiatric treatment for drug abuse; and other assaults both in jail and a previous (uncharged) assault by the respondent.^[10]

10. [10]
       This of course raises difficult issues of causation.  There is no doubt that the applicant was already at the time of this incident suffering from a range of physical and psychological problems relating to the matters outlined.  Mr Bagley submits that the combination of the severity of the symptoms, their length and future chronicity, justify and award of 30% ($22,500). Applying a commonsense approach to causation, noting the material contribution of the injuries the subject of this application to the damage suffered by the applicant^[11], and taking into account the chronic and ongoing nature of the effect of the subject incident (in addition to the other matters referred to) it seems to me appropriate to award 25% ($18,750) pursuant to Item 33.

Contribution

10. [10]
    I do not consider that the applicant has contributed in any way to his own injuries.^[12]

Conclusion

11. [11]
    I order that the respondent, Russell John Gordon, pay the applicant, Gary Robert Horton, the sum of $41,250.