DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant, Shaun Douglas Temple, seeks compensation in respect of injuries suffered by him arising out of an incident which occurred on 8 August 2005 at Jimboomba, resulting in the respondent pleading guilty before me in the District Court at Beenleigh on 11 April 2007 to one count of break and enter a dwelling with intent to commit an indictable offence, at night, using actual violence and armed with a dangerous weapon, and (relevantly for these proceedings) one count of unlawful wounding with intent to do some grievous bodily harm. The respondent also pleaded guilty to a breach of a domestic violence order. The respondent was (relevantly) sentenced to five years imprisonment to be suspended after serving two years imprisonment, with an operational period of five years. A period of 611 days in pre-sentence custody was declared time served in respect of the sentence.

Facts

2. [2]
   The applicant, who was then a 39 year old man, had formed a relationship with Ms Sharon Fewster, the estranged wife of the respondent. At the time of the incident, the applicant understood that the respondent and his estranged wife had been separated for a period of approximately six months with no prospect of reconciliation. The applicant and Ms Fewster had known each other for approximately two months prior to the incident resulting in the offences, and had begun seeing each other romantically approximately one week prior to the incident.

3. [3]
   At about 6.30pm on Monday 8 August 2005, Ms Fewster had gone to the respondent’s home, which was her former matrimonial home, and had informed the respondent that she had formed a relationship with the applicant, whom the respondent had met on one previous occasion. Later that evening, the applicant spoke to Ms Fewster, who was crying, and he decided to go over and stay for the evening to console Ms Fewster. The applicant arrived at about 9.30pm. Ms Fewster’s children were asleep in their bedrooms and the applicant and Ms Fewster retired to the master bedroom of the house. Approximately one hour later, the applicant and Ms Fewster were woken by a noise in the house, moving up the hallway towards the master bedroom. The bedroom light was turned on and Ms Fewster and the applicant saw that it was the respondent, then holding a steak knife raised in his right hand and saying “do you know what you have done?”

4. [4]
   The respondent then went into the master bedroom, jumped on the bed and began to stab the applicant with the steak knife. Ms Fewster left the room and telephoned police. The applicant struggled with the respondent who was on top of him. The applicant was struck a number of blows by the steak knife, and thought that the prisoner was hitting him, but at the time could not feel any pain.

5. [5]
   The applicant was able to grab the respondent’s right wrist and then left wrist, taking some of the respondent’s weight. The applicant and the respondent were then facing each other in that manner at which time the respondent said, somewhat incoherently, “with my wife. Look at you, fucking die”. At that point the applicant could feel blood running over his head, shoulders and chest and felt that he was bleeding from his head. The applicant didn’t realise that he’d in fact been stabbed anywhere else at that time.  The applicant was able to swing his legs off the bed and get to his feet.   At that point the respondent got off the bed and walked out of the home.

6. [6]
   The applicant was comforted by Ms Fewster as they waited for both the police and the ambulance. The applicant was transported to the Logan Hospital where he was suffering from stab wounds to his chest, shoulder and head, and had also sustained a number of abrasions to his body during the scuffle between himself and the respondent.  The chest wound was such that the knife had penetrated between the rib cage and into the applicant’s lung and caused a pneumothorax (this was a slight puncture of the lung)^[1].

Injuries

7. [7]
   It was noted upon the applicant’s admission to the emergency department of the Logan Hospital by ambulance on 9 August 2005 at 12.10am that the applicant was suffering the following injuries:-^[2]

1. [1]
   “[Approx] 3cm semi-circular stab wound right anterior chest, 5^th intercostal midclavicular line.  The wound tracked inferolaterally, communicating with the right thoracic cavity.  Air was bubbling from the wound.  Chest x-ray showed a small – moderate right sided pneumothorax with minor blunting of the right costophrenic angle.  There was no clinical evidence of diaphragmatic penetration. 

2. [2]
   1.5cm slash wound to left shoulder.

3. [3]
   [Approx] 4cm/wound to left scalp over parietal region. Underlying swelling/haematoma [approx] 5cm diameter. No underlying bony disruption.

4. [4]
   1.5cm superficial slash wound to left elbow.

All wounds extended through the skin into subcutaneous tissue.  The patient was haemodynamically stabled throughout.

The patient had a right sided intercostal catheter inserted.  The wounds were washed and sutured.  He was given IV antibiotics, IV fluids and was transferred to the surgical ward for further observation and management as required.

The chest wound was potentially life threatening. [The author of the report, Dr Merle Weber expressed the opinion in the report (dated 5 September 2005) that] [the applicant] should recover fully without disability, but will have residual scarring at the site of his wounds.”

8. [8]
   The applicant was transported to the Logan Hospital where his injuries were documented by Dr Elizabeth Culliford on 9 August 2005.  The following injuries were identified by Dr Culliford^[3]:-

“Injury 1

There was an L shaped incised wound just below the right nipple at the level of the 5^th intercostals space.  The two limbs of the L measured 2 and 1cm respectively.  There was a linear abrasion at the medial end of the longer limb and two linear abrasions in line with the shorter limb measuring 1cm and 2cm.  There were five nylon sutures in situ.

Injury 2

There was a 1cm deep linear abrasion just distal to the lateral epicondyle of the left elbow.

Injury 3

There was a 2cm irregular linear incised wound 6cm medial to the tip of the left shoulder.  There were three nylon sutures in situ.

Injury 4

There was an L shaped incised wound to the left parietal area of the scalp, 6cm above the left ear.  The two limbs of the L measured 2 and 1cm respectively.  There were six nylon sutures in situ.

…

[Dr Culliford noted that] three of the injuries were incised wounds.  It was not possible to state how deep they went into the body because they had all been sutured by the time [Dr Culliford] saw the complainant [12 hours after the alleged assault].  However, to have caused a pneumothorax, the tip of the knife would have had to penetrate through the chest wall, between the ribs, into the lungs, causing air to escape into the pleural space and partially collapsing the lung.

A stab wound to the chest penetrating the chest wall into the lung, is potentially serious with the possibility of collapsing the lung and causing bleeding.

All the injuries appeared recent in that they were still oozing fresh serosanguinous fluid and had had a negligible inflammatory reaction…

It is difficult to describe the characteristics of the edges of the wounds, since they had been sutured.  Thus it is not possible to describe the likely features of the knife causing the wounds.  The irregular nature of the three wounds (injuries number 1, 3 and 4) could suggest that the knife was not very sharp as there appeared to be an element of tearing as well as cutting.  However, the three stab wounds were all 2cm or less suggesting that beyond the point of the knife, the terminal part of the shaft of the knife was less than 2cm wide.

The abrasion to [the applicant’s] left elbow could have been produced as a defence injury as he put his arm up to ward off a blow.

The linear abrasions associated with the chest stab wound would have occurred as a result of the tip of the knife scratching the chest wall prior to the knife penetrating the chest or as the knife was removed.”

9. [9]
   Dr Scott Campbell, Neurosurgeon provided a report dated 15 May 2007^[4] which noted a diagnosis of “multiple stab injuries requiring surgical repair” and assessed the applicant’s impairment as follows:-

“Left scalp scarring/pain

[The applicant] is suffering a 2 per cent whole person impairment for the left scalp pain in accordance with table 8-2, class 1.

Left shoulder scarring/pain

[The applicant] is suffering a 2 per cent whole person impairment for the left shoulder pain in accordance with table 8-2, class 1.

Right anterior chest wall scarring/pain

[The applicant] is suffering a 2 per cent whole person impairment for the right anterior chest wall pain in accordance with table 8-2, class 1.

Depression

[The applicant] developed depression after the assault and currently suffers low mood and loss of motivation. 

Combined impairment rating

[The applicant] has a 6 per cent whole person impairment.  The impairment… is likely to be permanent. 

Assessment of disability

The injury has caused “an alteration of an individual’s capacity to meet personal, social or occupational demands or statutory or regular requirements because of an impairment”.”

The Law

10. [10]
    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 “unserious” 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.  As McMurdo P stated in Riddle v Coffey^[5]:-

“[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]”.

Compensation

11. [11]
    Mr Maher on behalf of the applicant seeks compensation as follows:-

3. (1)
   Item 1 - Bruising/laceration etc (minor/moderate) (1%-3%)

12. [12]
    Mr Maher submits that “lacerations as described by Dr Weber and headaches” should be compensated with an order of 3 per cent of the scheme maximum ($2,250). I have carefully reviewed the report of Dr Elizabeth Culliford^[6] and the report of Dr Merle Weber^[7], and neither of those reports makes any reference to bruising or lacerations.  In my view, the injuries suffered by the applicant (excluding the mental or nervous shock) were all injuries which could properly be described as “stab wounds”, with the exception of what Dr Culliford described as “Injury 2”, a “1cm deep linear abrasion just distal to the lateral epicondyle of the left elbow”^[8].  Dr Culliford noted in respect of that injury that it could have been produced as a defence injury as the applicant put his arm up to “ward off a blow”^[9] and although Dr Culliford noted that the three other injuries suffered by the applicant all resulted in a breach of the true skin, the injury to the applicant’s left elbow (by inference) did not involve a breach of the true skin^[10].  This observation is consistent with Dr Weber’s finding that the left elbow injury was a “1.5cm superficial slash wound”^[11].  In the circumstances, it is my view that the injury to the left elbow comes within the description of “bruising/laceration etc” and should appropriately be awarded a percentage of 2 per cent of the scheme maximum ($1,500).

3. (2)
   Item 24 – Gunshot/stabwounds (minor) (6%-10%)

Item 26 – Gunshot/stabwound (severe) (15%-40%)

13. [13]
    Mr Maher submits, relying on the unreported decisions of Cope v Sargison^[12] and Unsworth v Roy^[13], that an award should be made in respect of the stab wounds to the left elbow, left shoulder and left scalp by way of an assessment of 10% of the scheme maximum ($7,500) with a separate award being made for the stab wound to the right anterior chest (causing a pneumothorax) which was described by Dr Weber as “potentially life threatening”^[14].  The submission by Mr Maher is that this should be compensated separately at 20%. 

14. [14]
    In my view, reading COVA s 26(1) in the light of the comments of President McMurdo in Riddle v Coffey^[15] the harm should be treated as a single injury even though it consists of more than one injury^[16].  Accordingly, I consider that the three stab wounds sustained to the left shoulder, left scalp and right anterior chest can properly and appropriately dealt with as a single injury under Item 26 (gunshot/stab wound (severe)).  In that respect, taking into account Dr Campbell’s assessment of a total 6% whole person impairment^[17], and taking into account the nature of the injuries, I consider that an award of 25% of the scheme maximum ($18,750) is an appropriate award which reflects the nature of the injuries, in particular, the potential life threatening aspects of the stab wound to the chest, but conversely recognises that all three stab wounds were effectively part of one injury.  I note for completeness that the injury to the left elbow, a laceration, has been compensated separately under Item 1 (Bruising/laceration).

3. (3)
   Item 32 – Mental or nervous shock (moderate) (10%-20%)

15. [15]
    Mr Maher refers to the diagnosis by Dr Barbara McGuire, psychiatrist^[18], who found that the applicant has “post traumatic stress disorder which appears to be worsening since the incident as the time for his assailant’s parole approaches”.  Mr Maher submits that an assessment should be made under Item 32 (mental or nervous shock moderate) at 20% of the scheme maximum.  I note that the report of Dr McGuire indicates that the applicant has not had any treatment which may well render his condition less severe, and that the applicant “may well be more vulnerable to the attack because of his previous dysfunctional childhood.”^[19]  Although the issue of causation clearly arises in this context, it is clear that a commonsense approach must be applied and the court needs to assess the injury caused, taking into account the material contribution of the injuries which are the subject of this particular application to the overall outcome for the applicant.^[20]  In those circumstances (i.e. the applicant’s pre-existing dysfunctional upbringing), it seems to me appropriate to assess the applicant’s injuries under this item at 20% ($15,000).

Contribution

16. [16]
    I do not consider that the applicant has contributed in any way to his own injuries.^[21]

Order

17. [17]
    I order that the respondent Adrian Richard Fewster pay the applicant Shaun Douglas Temple the sum of $35,250.