Schilling v Foden[2008] QDC 190

DISTRICT COURT OF QUEENSLAND

1. [1]
   The applicant seeks compensation arising from events which occurred in the early hours of Saturday, 8 May 2004 in Emerald resulting in the respondent pleading guilty before His Honour Judge Britton in Emerald on 29 August 2006 to one count of assault occasioning bodily harm.  A conviction was recorded and the respondent was sentenced to 12 months imprisonment wholly suspended for an operational period of one year.

2. [2]
   FACTS

The events leading up to the assault are not clear but there was some kind of an altercation.  At some stage however the complainant found himself on the ground and whilst he was trying to get up the respondent punched him several times in the face and kicked him while he was on the ground.^[1]

3. [3]
   THE LAW

The application is made under s 24 of the Criminal Offence Victims Act 1995 (Act) which provides for the awarding of compensation against a convicted person if that person is convicted on indictment of a personal offence against the applicant.

4. [4]
   The matters to be established to entitle the applicant to compensation are:-

1. (a)
   conviction of the respondent for an offence on indictment;

2. (b)
   the offence to be a personal offence;

3. (c)
   injury to be suffered by the applicant; and

4. (d)
   that injury to be suffered because of the offence.

5. [5]
   The application is a civil proceeding and any issues of fact are to be cited by reference to the civil standard, the balance of probabilities.^[2]

6. [6]
   “Injury” is defined in s 20 of the Act as bodily injury, mental or nervous shock, pregnancy or other injuries specified in the Compensation Table or prescribed under a Regulation and Regulation 2 sets out the statutory maximum of $75,000 available to be awarded to an applicant.

7. [7]
   APPLICANT’S INJURIES

8. [8]
   As a result of his injuries the plaintiff lost 15 kilograms in weight resulting from his restriction to liquid or pureed foods and it took him some 18 months to regain his confidence to go out in public given that he did not know the identity of his attackers. He still experiences pain and discomfort in his right facial region due to an overbite resulting from the misalignment of his jaw and constant arthritis in the jaw bone and eye socket areas.^[5]  Of the four elements set out in paragraph 4 above the first three are clearly established.  However the fourth element namely that the applicant’s injury was suffered because of the subject offence is disputed by the respondent.

9. [9]
   CAUSATION

The respondent’s argument on causation relies for support on the fact that the respondent was not the only one involved in the assault. The applicant has very little recollection of the assault, having lost consciousness after being struck.^[6]  The respondent’s sentencing proceeded on the basis that more than one person was involved in the assault. His Honour Judge Britton said this^[7]:

“It is not very clear exactly what led to this offence being committed, but what is clear is that there was some kind of an altercation.  In any event, at some stage the complainant found himself on the ground and whilst he was trying to get up it appears that you punched him several times in the face and that you also kicked him while he was on the ground.  It is not clear what blows were inflicted upon the complainant to cause the significant injuries which he was found to have suffered.  It is not possible to say that any particular injury was caused by you.  He did suffer significant injuries as a result of the events that occurred, and it is clear that at least one other person inflicted blows upon him.

…

The Crown is not able to prove that you were responsible for any particular one of those injuries …”

The punching to the face three of four times occurred while the applicant was on the ground trying to get up.^[8]

10. [10]
    The respondent submitted that because of the impossibility of attribution of the respondent’s punching of the applicant’s face when he was on the ground and kicking of the applicant to specific injuries, the relevant causative link required by s 24(2) of the Act was absent.  That section requires the injury to have been suffered by the applicant “because of the offence”.

11. [11]
    The issue of causation is one which has attracted a deal of judicial attention. In R v Tiltman; ex-parte Daw^[9] His Honour Justice Lee said on the issue:

“If the offences for which the respondent was convicted made a material contribution to the applicant’s injury then, unless the respondent is able to separate the effects of the compensable conduct on the applicant, with some reasonable measure of precision, the applicant is entitled to have his compensation assessed in respect of his whole injury.”

(My emphasis).

12. [12]
    Five years later in SAM v SAM^[10] His Honour Robertson DCJ addressed an argument by the respondent who submitted that two sexual abuse incidents, separated by a period of nine years, could not be said to have been the material cause of the applicant’s claimed injury.  His Honour proceeded on the basis that causation was to be approached ultimately as a matter of common sense.  He found that in the instant case it defied common sense and logic not to infer that the actions of sexual abuse under consideration would not have materially contributed to the applicant’s total injury.

13. [13]
    The Court of Appeal in Sam v Sam^[11] approved this approach as reflected in the words of McMurdo P:

“The primary judge rejected that argument, adopting a common sense approach to causation and concluded that the commission of two serious offences of sexual abuse by an actual father upon his daughter was a material contribution to her present psychological injury.  This approach, with respect, appears to be plainly right.”

14. [14]
    Some three years later in LMW v Nicholls^[12] His Honour McGill DCJ said:

“… In my opinion the approach to causation to be applied under the Criminal Offences Victims Act 1995 is the same as the approach applied under the Code, and indeed the same as the approach in relation to liability and tort.  There is not to be any apportionment on the basis of causation.  As long as the relevant conduct of the respondent, that is the conduct constituting the offences of which he has been convicted, amounted to a cause in the legal sense, that is a material contribution to the suffering of the particular injury the subject of the application, then compensation can be awarded for that injury.”

That approach was approved by the Court of Appeal in Say v AZ ex-parte Attorney-General of Queensland.^[13]

15. [15]
    It is true that the full circumstances of this assault, involving as it did, other unidentified and uncharged assailants, have been denied to both the sentencing judge and this Court. Hence the precise details of the applicant’s injuries attributable to the punches and kick or kicks levelled by the respondent at the applicant are not known. I say kick or kicks because it is not clear to me from the sentencing remarks^[14] or the sentencing submissions,^[15] not contested by the respondent at sentencing, that the kicking was confined to one kick or more.

16. [16]
    Apart from assaults which take place in vision of close circuit television cameras in some public thoroughfares, I would not have thought it an unusual situation where there is an assault involving more than one assailant, for it to be very difficult if not impossible, in many instances, to attribute specific injuries to specific assailants. Whilst the court is never relieved of the responsibility of being satisfied, on the balance of probabilities, of proof of all elements of a claim for compensation, the above scenario is an example justifying the common sense approach the courts have taken in determining whether or not the offending conduct was a material contribution to the injury. That, coupled with the lesser civil standard of proof on the balance of probability, allows justice to be done where deserved. If too strict a view was taken of the matter, one could well envisage situations arising where a victim of assault by multiple offenders would be deprived of an entitlement to compensation because he or she was not, at point of assault, alert enough to identify which assailants caused which injuries. The absurdity and potential injustice of such a situation is obvious.

17. [17]
    Mr Clarke, for the respondent, relied on s 33 of the Act which allows the State to make an ex gratia payment in circumstances where, relevantly, the offender cannot be identified or found after appropriate enquiry and search, and where that person would have been tried on indictment, had he or she been able to be identified and found.  Within the scheme of the Act, s 33(1) (c) the relevant provision, is consonant with the object of the Act to compensate the victims of criminal offences.  It reflects the legislative intention that a victim should not go uncompensated for an injury suffered because of an offence where the offender cannot be found. The respondent says that that is the appropriate avenue for the applicant to pursue, rather than this application, given the uncertainty surrounding the injuries caused by him.   That would be an avenue open to the applicant if he was otherwise disentitled to compensation, but it is not an answer to his present claim if it is otherwise valid.

18. [18]
    As Mr. Clarke correctly submitted, I must be guided by the evidentiary basis on which the learned sentencing Judge proceeded. From the remarks of his Honour several matters are clear to me. Firstly, the respondent pleaded guilty to assault occasioning bodily harm. Bodily Harm means any bodily injury which interferes with health or comfort.^[16] By his plea, the respondent admits he caused bodily harm to the applicant.

19. [19]
    Next, whilst there were one or more other unidentified and uncharged assailants involved in the assault, there is no evidence of what contribution they made to it or, if any, to the applicant’s injuries. That is to be contrasted with the respondent who admits he punched the applicant three or four times and kicked him, causing him injury. He does not, of course, admit the injuries here under consideration.

20. [20]
    Dr Arvier’s unchallenged affidavit evidence was that, in his experience in treating injuries of the type sustained by the applicant it was highly unlikely that the three separate fractures of the bridge of the nose, the right cheekbone in front of ear and the right corner of the jaw bone, were caused by one punch or kick. He said it was more probable than not that they were caused by three or more punches or kicks.^[17] Whilst the respondent accepted he hit the applicant three or four times in the face, and kicked him when he was on the ground, there is no evidence of where he kicked him. I proceed on the basis that there is no basis for a finding that he kicked him in the face. But, as Dr Arvier said, the fracture injuries could have been caused by punches or kicks.

21. [21]
    His honour’s sentencing remarks above set out, to the effect that it was not possible to say that any particular injury was caused by the respondent, do not, to my mind, leave open the possibility that His Honour was saying that no injury was caused by the respondent. That would have been inconsistent with the plea of guilty accepted by him. Rather, I take his remarks to be stating what was common ground, that, in the melee as it happened, with more than one assailant, it was not possible to make specific attribution of the respondent’s conduct to specific injuries to the applicant. In the criminal context that would have required proof beyond reasonable doubt. Here the standard is on the balance of probabilities.

22. [22]
    Having regard to the admissions made by the respondent that he punched the applicant three or four times in the face when he was on the ground, and Dr. Arvier’s view as to how the injuries were likely to have been caused, I am satisfied on the balance of probabilities that the respondent’s assault, constituted by his punching the applicant three or four times in the face while he was on the ground trying to get to his feet, made a material contribution to the applicant’s injuries so as to satisfy the criterion in s 24(2) of the Act that the injury was suffered by the applicant because of the offence for which the respondent was convicted. The respondent has not separated, and has not sought to separate, the effects of his compensable conduct from any other. Accordingly, the applicant is entitled to have his compensation assessed in respect of the whole of the injury.^[18]   I am also satisfied that the applicant in no way directly or indirectly contributed to his injury.

23. [23]
    COMPENSATION

With reference to s 26 of the Act and particularly s 26(4) I am satisfied the applicant suffered the following discrete injuries and should be compensated in the following amounts by reference to Schedule 1 of the Compensation Table to the Act.  In that regard I have had regard to the evidence of Dr Arvier^[19] who said that it was highly unlikely in his view that one punch or kick caused the three separate fractures of the nose, cheekbone and jawbone and that it was more probable than not that those fractures were caused by three or more punches or kicks.

24. [24]
    I order the respondent to pay the applicant $33,250.