Madden v Merlo[2009] QDC 118

DISTRICT COURT OF QUEENSLAND

HER HONOUR: This is an application by Mr Madden for an order that Mr Merlo pay compensation for the physical and psychological injuries he suffered at Mr Merlo's hands.

On the 8th of February 2007, Mr Merlo pleaded guilty to a number of offences including one offence to which this application relates and that is of the offence of grievous bodily harm. He was sentenced to imprisonment for a period of five years with a parole eligibility date fixed at the 8th of February 2009. This is a personal offence under the Criminal Offence Victims' Act,^[1] s 21, and Mr Madden is entitled to an order for compensation pursuant to s 24(2).

Mr Merlo appears to be aware of the application having previously consented, requested and signed a consent to adjourn the hearing on a date earlier fixed for this application. Whilst he has not appeared, I am satisfied that he is aware of the application and there is proof of service upon him.

This offence occurred when Mr Merlo punched Mr Madden repeatedly to the head and face at a tavern. Mr Madden fell to the ground, either from the punches or the fall or both, he suffered multiple facial fractures resulting in no less than 16 titanium mini plates having to be inserted into his head. His left orbital floor had to be reconstructed and he lost a number of teeth.

At sentence, the learned sentencing Judge, His Honour JudgeForno noted the offence was committed upon a man who did not offer any violence to the respondent. It was a vicious attack which resulted in multiple head fractures. The slight, if any offered, was a tenuous explanation for the attack. Whilst Mr Merlo pleaded guilty to the offence there was not much by way of a defence which appeared to arise on the facts. He also expressed the view that Mr Merlo appeared to present a danger to the community.

Given the observations of his Honour at sentence and the lack of any evidence to the contrary, I am satisfied there is no evidence of factors relevant to the Court's exercise of discretion under s 25(7) of the Act. That is, I do not consider the compensation awarded to Mr Madden needs to be reduced in any way to reflect a contribution to the circumstances of the offence on his part.

At sentence, the sentencing Judge proceeded on the basis that Mr Madden was not suffering any ongoing significant health problems. He did that of course on the basis of submissions that were then made to him. The evidence that has been placed before me establishes that is not the case and that Mr Madden suffers from ongoing health problems which have arisen from these injuries and I am satisfied the Court is entitled to Act upon that material.^[2]

I have, therefore, determined this application on the basis of the full extent of Mr Madden's injuries. I will deal with those in the order in which they are addressed in Mr Maher's comprehensive submissions.

Firstly, item 2 for bruising/laceration, severe. Dr Patterson deposed to bruising to Mr Madden's left temple, left periorbital region, a deformity and swelling over the bridge of his nose, a laceration to his nose and bruising to the left jaw area, and a small laceration, internal, to the left upper lip. The range for severe bruising and laceration is 3 to 5 per cent. I think that it is reasonable to compensation MrMadden to the extent of 4 per cent under that item.

The next item referred to is item 8: facial fracture, severe. As I indicated to Mr Maher in his submissions, I accept his argument that is appropriate in the circumstances of this case to reflect the numerous points of fracture Mr Madden sustained by awarding him compensation at the maximum amount available for facial fractures, severe, that is at 30 per cent. The evidence of Dr Reid establishes that he sustained multiple fractures to the right zygomatic arch, the left antrum, the left orbital floor, the left orbital emphysema, the left zygomatic arch, the right antrum wall, two fractures of the hard pallet, fractures to the pterygoid plates right and left. As well as these fairly concentrated but numerous fractures, Mr Madden suffered a displacement and deformity arising from the fracture of his nose.

It is, I think, reasonable to reflect those injuries in one award at the maximum level available rather than to seek to separately compensate them. I think, in the end the calculation would remain the same.

The next item is loss or damage of teeth. Four teeth were broken in the incident and an award of 6 per cent which is in the mid point of the range of item 5 is appropriate. There is also a head injury item which is the remaining physical injury. Item 9, the range for a head injury not involving brain damage is 5 to 15 per cent. Mr Madden suffers from chronic post-traumatic headaches and suborbital nerve damage. Dr Campbell, the neurosurgeon who assessed him assessed MrMadden as suffering a 5 per cent whole person impairment which is likely to be permanent given the period over which it has endured. The headaches are daily and severe requiring medication. The left facial numbness is "annoying" and occasionally "itchy". The award sought is 10 per cent. I am persuaded, or I consider, given the other items that I have awarded that an order in the order of 8 per cent is appropriate for this item.

That leaves the psychological injury: item 32, mental or nervous shock, moderate. I have had regard to Dr McGuire's assessment in May 2007 of Mr Madden. Bearing in mind the offence occurred in March of 2006, Mr Madden was still then suffering from post-traumatic stress disorder to a mild degree. Those injuries are manifested by avoidance, sleep disturbance, security consciousness, paranoid feelings and irritability, and it is clear that Mr Madden also suffered from a loss of employment for a period of some months.

He has not had any treatment for these injuries. Dr McGuire's assessment is that the symptoms will abate over time and she does not recommend further treatment of the condition. Taking those matters into account, I think the more appropriate award is for mental or nervous shock, minor, but at the higher end of the scale. In this case, an award of 8 per cent.

Taking each of those awards into account, all those calculations into account, the overall award would be 56 percent representing a figure of $42,000. I order that Mario Giovani Merlo pay Derek Michael Madden the sum of $42,000 by way of compensation pursuant to s 24 of the Criminal Offence Victims' Act 1995 (Qld).