DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Brett William Paterson seeks compensation in respect of injuries suffered by him in an incident which occurred on 1 October 2004 at the Harbour Town Shopping Complex, Gold Coast. This incident resulted in the respondents, Shamal Chand and Shammi Chand each, pleading guilty to a count of assault occasioning bodily harm whilst armed with an offensive instrument and in company. Shammi Chand also pleaded guilty to a charge of dangerous operation of a motor vehicle.

2. [2]
   Shamal Chand was sentenced to nine months imprisonment, wholly suspended with an operational period of two years.

Facts

3. [3]
   The agreed statement of facts tendered on the sentencing proceedings as Exhibit 5^[1] sets out the relevant facts in relation to this incident, which are as follows:-

“On the evening of 1^st October 2004 at about 10:50 pm the [applicant] took his 14 year old son to the cinema at Harbour Town Shopping Complex.  He first noticed the accused vehicle (sic), a white HiLux when he had stopped at the ATM whilst his son got money out of the ATM.  The accused car (sic) was parked closely to the ATM, and another male was seen talking to the occupants of the HiLux.  The [applicant] has then picked up his son and dropped him off near the cinema at the taxi rank.

At this point the [applicant] realised he was being followed.  The offenders have followed the [applicant’s] vehicle to an intersection of Brisbane Road and Badbridge Street where they have come into close contact with the [applicant’s] vehicle, on the offenders’ version, trying to see into the vehicle.  The [applicant] has then taken off, whilst being pursued by the offenders [respondents]. 

The [applicant] has exited his vehicle, having armed himself with a bat, and a confrontation developed, the [applicant] swinging his bat, and Shammi [second respondent] was swinging a stick.  The [applicant] has swung his bat at Shammal [first respondent] (and some time during the course of which the bat partially breaks) and at this point Shammi has grabbed the bat from the [applicant].  Shammi has struck the [applicant] around the head, back and face with the bat, four or five times, and the bat broke completely.  Shammal was assisting by holding the [applicant] at this time. 

The [applicant] later becomes aware that the offenders have returned to their vehicle, where they have rammed his vehicle, reversed and rammed his vehicle again.”^[2]

Injuries

4. [4]
   The agreed facts, under the heading “injuries” states:-^[3]

“The [applicant] was taken to the Gold Coast Hospital by ambulance, where he was observed to suffer the following injuries:

• Soft tissue injuries to the spine, ribs, right side of the face, right forearm and pelvis, skin abrasions and lacerations to the head and face.
• He was later seen by Dr Lincoln four days [afterwards] who took a series of photographs and recorded the injuries observing
  • a 3 cm sutured laceration on the upper right forehead
  • three small scalp lacerations, one of which was sutured with a single suture and another glued
  • a small, less than 1 cm sutured laceration just below the left eyebrow
  • 2-3 cm x 4 cm area of bruising surrounding the left eye
  • at least two lacerations and bruising to the right cheek
  • mild tenderness in the shoulders
  • a tramline bruise on the back of the left upper arm
  • and a series of abrasions on the back, upper and lower limbs (see photographs).”

5. [5]
   The photographs were tendered as Exhibit 6 in the sentencing proceedings and copies have been provided in these criminal compensation proceedings.^[4] 

The Law

6. [6]
   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 for 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.  However “where it is practical to make separate assessments under each applicable item in the [compensation] table whilst at the same time avoiding duplication that course should be adopted”, unless it is impractical.^[5]  Further, “if an injury that is best described in one item [of the compensation table] is instead assessed together with another injury under another item in order to avoid duplication it may therefore be necessary to make an adjustment to cater for differences between the ranges or maxima for each item”.^[6]  Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.^[7]

Compensation

7. [7]
   Mr Reid on behalf of the applicant seeks compensation as follows:-

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

8. [8]
   Mr Reid submits, in effect, that the bruising and laceration identified as having been suffered by the applicant (see paragraph [4] above), amounts in total to a collection of injuries which should receive an award at the upper end of the Item 2 range (i.e. 5% of the scheme maximum), an amount of $3,750. Given the number of abrasions, lacerations and soft tissue injuries, the various areas in the body in which they were incurred, and the consequent seriousness of those injuries, it is in my view appropriate to award 5% pursuant to Item 2 ($3,750).

(2)  Item 21 – neck/back/chest injury (minor) – 2%-7%

9. [9]
   Mr Reid submits that the injuries identified by him as being “neck injury and headaches” should receive an award of 5% of the scheme maximum ($3,750) under Item 21. My review of the material does not reveal any specific medical support for such a proposition. In fact the report of Dr Catherine Lincoln who examined the applicant on 4 October 2004, approximately two and a half days after the alleged incident, notes under a heading “head and neck” at paragraph 7 “no injuries to the ears or neck”.^[8]  The report of Dr Robert McNinch, medical practitioner at the Gold Coast Hospital indicates that when Dr McNinch examined the applicant on his arrival at the Gold Coast Hospital emergency department, the applicant “was tender over his cervical (neck) and thoracic (chest) spine [and] a hard collar was placed on [the applicant’s] neck at this time”.^[9] 

10. [10]
    The summary of the applicant’s injuries set out at p. 3 of the same report states that:

“In summary [the applicant’s] injuries were:

• Soft tissue injuries to spine, ribs, right side of face, right forearm and pelvis
• Skin abrasions to both hands, knees, elbows, ankles and feet
• 5 cm laceration to forehead
• 1 cm laceration to left eyelid
• 4 cm laceration to top of head
• 1 cm laceration and haematoma to back of head
• 1 cm laceration to inside of right cheek.”

A perusal of the material filed does not reveal any other information on which, in my view, it would be considered appropriate to make an award under Item 21, and accordingly I do not make an award under this Item.

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

11. [11]
    Mr Reid submits that the applicant should receive an assessment of 10% ($7,500) under this item, a figure at the top of the minor/moderate scale for facial disfigurement or bodily scarring. Dr Terrence Scamp provided a report dated 16 June 2008^[10] in which he notes as follows:-

“On inspection today [9 May 2008] the scalp lacerations are well hidden by [the applicant’s] hair.  [The applicant] has a scar in the right frontal region which measures 4 cms in length and has a subtle degree of depression of the surrounding soft tissue.

In the right supraorbital region there is a 2 cm scar which is fine and not associated with soft tissue contour disturbance.  There is a 12 x 3 mm depress scar on the central forehead and a 15 x 4 mm irregular scar in the left supraorbital region associated with contour depression. 

Assessment

Despite the severity of the assault [the applicant] has escaped with remarkable (sic) little scarring or disturbance to his facial appearance.  I do not believe that the scars, as they are likely to be (sic) remarkably improved by scar revision and therefore I would recommend no surgical intervention. 

In specific answer to your inquiries the nature of your client’s scarring is as outlined above.  The scarring is consistent with the stated cause although I am somewhat surprised that his scarring is not more severe given the history of the nature of the assault. 

The scars are now four years old and are unlikely to improve further.  However they are relatively inconspicuous. 

He has a minor degree of disfigurement from these scars which I would rate as less than 5%. 

No further treatment is required for his scars and no other medications would be required for the scarring on an ongoing basis.”

12. [12]
    In the light of that assessment it is my view that the appropriate award is an award in the mid range of Item 27, and accordingly I award 6% of the scheme maximum ($4,500) pursuant to this Item.

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

13. [13]
    Mr Reid submits that the applicant should receive an award of 30% of the scheme maximum for mental or nervous shock.

14. [14]
    Ms Natalie Green, psychologist provided a report dated 20 November 2007^[11] which concluded that the applicant

“continues to meet the criteria for post traumatic stress disorder (PTSD) as determined by DSM IV-TR criteria and he has been considerably affected by the traumatic incident at all levels of functioning; emotionally, interpersonally, socially and occupationally.

Whilst [the applicant] has undoubtedly some residual PTSD, clinical interview indicated that this would appear to have reduced in severity somewhat as a result of him having relocated … away from the place of attack and having considerably reduced the chance of seeing his perpetrators again.”

Ms Green assessed his Global Assessment of Functioning (GAF) at 55 (on a 0-100 scale).^[12]

15. [15]
    Dr Judith Chittenden, psychiatrist, in a report dated 14 February 2007^[13] diagnosed the applicant as having had “a moderately severe degree of adjustment disorder with a predominance of anxiety and some depressive symptoms, which had as a result meant that the applicant’s ‘life [had] changed to a great degree’”.  However, as at the date of Dr Chittenden’s assessment of him (18 January 2007) she considered that the applicant had: -

“largely recovered with regard to his psychological state, but [had] some residual symptoms of anxiety and anticipation of further assault, which [limited] his social involvements, but from a psychiatric point of view, [the applicant had] largely recovered over the course of time since the assault”.^[14]

16. [16]
    Dr Chittenden was requested to provide an addendum report given the conflict in psychiatric/psychological diagnoses and that addendum report dated 1 May 2008^[15] commented (in respect of the applicant’s physical injuries) that she “would agree that [the applicant] has had a minor head injury with some immediate, but unlikely to be long-lasting, symptomology [and] his neck injury was also likely to cause a focus for his headaches at times”.  Dr Chittenden goes on to state that she “would agree with Ms Green that [the applicant] had symptoms of post traumatic stress disorder in the early stages after he was assaulted”, but Dr Chittenden indicated that she “felt that these symptoms largely subsided over time”, and although agreeing that the applicant still suffered “from post traumatic stress disorder of a mild degree,” considered in her opinion that his presenting symptomology at present was that of “an adjustment disorder with mixed anxiety and depressed mood in DSM IV 309.28”.  Dr Chittenden went on to state that: -

“I think it is likely that Ms Green and I are observing the same psychological symptoms and effects on [the applicant’s] work, social and lifestyle activities, but have in this case, used ‘not so different’ diagnoses as [the applicant] has both residual anxiety and depressive symptoms, some of which are likely to continue to affect [the applicant’s] lifestyle and sense of wellbeing.” 

Dr Chittenden went on to express the view that both Ms Green and herself had given “approximately the same level of psychological disability on the GAF scale” and she considered that the applicant “would benefit from seeing an appropriate clinical psychologist for treatment of his anxiety and depressive symptoms although she did not think that he currently required psychiatric intervention.^[16]

17. [17]
    Mr Reid’s submissions are that despite the conflict in diagnoses, both Ms Green and Dr Chittenden assess approximately the same level of psychological disability on the GAF scale, and that the applicant’s mental and nervous shock symptoms are such that they should be considered to be “of a serious nature and should be scaled accordingly”.

18. [18]
    In my view the relevant reports indicate that the applicant’s mental or nervous shock fits more appropriately in the upper end of Item 32 (mental or nervous shock – moderate - 10%-20%), and accordingly I award 20% of the scheme maximum ($15,000) under Item 32.

Contribution

19. [19]
    Although the confrontation commenced with the applicant coming out with a baseball bat and the respondents holding a stick, the continuation by the respondents of the assault on the applicant, in particular after the baseball bat was broken and the applicant was hit four or five times by the second respondent while the first respondent held him, vindicated my view that in a practical sense the applicant could not be considered to have contributed to his injuries^[17] despite him arming himself at the commencement of the confrontation.  Accordingly in the circumstances I do not considered that the award should be reduced for contribution. 

Conclusion

20. [20]
    Accordingly I order that the first respondent Shamal Chand and the second respondent Shammi Chand pay the applicant Brett William Paterson the sum of $23,250.