Kane v Horne[2009] QDC 347

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries suffered when he was stabbed by the respondent on 31 December 2007.

2. [2]
   On 18 June 2009 the respondent pleaded guilty in the District Court at Southport to unlawfully doing grievous bodily harm to the applicant. He was sentenced to three years imprisonment with an immediate parole release date. He had served 474 days in pre-sentence custody which was declared as imprisonment already served.

3. [3]
   The application and supporting affidavits were served on the respondent on 7 October 2009.^[1]

Circumstances of the Offence

4. [4]
   In his statement to the police dated 7 January 2008^[2] the applicant said that on New Year’s Eve 2007 he went to bed after watching the fireworks on television.  He was woken at some time between 10 pm and midnight by his housemate calling out to him.  He then heard a male person demanding money.  He then went to the lounge room where he saw his housemate backed up near the archway to the kitchen and a male person brandishing a wheel brace in his right hand.  He said that the male person then turned to him and demanded money.  The applicant said that he recognised the male person as someone who had been to his home on one previous occasion and had a drink with a group of others.  The applicant said that the male person approached him swinging the wheel brace.  The applicant then obtained a fence paling.  He said that the respondent struck him with the wheel brace.  He said that the respondent then obtained a knife from the kitchen and approached his housemate.  The applicant charged towards the respondent with the fence paling and hit him in the chest area.  A struggle ensued.  The applicant said that the respondent had the wheel brace in one hand and the knife in the other.  The applicant said that he endeavoured to prevent the respondent using the knife but was unable to do so.  As he went to grab the respondent’s left arm he saw the knife moving towards his own left arm.  The applicant suffered a serious injury to his left forearm. 

5. [5]
   At the sentence hearing in the District Court at Southport on 18 June 2009 the Crown Prosecutor stated that the applicant had provided a different version to the police who attended his residence. The applicant initially told the police that he obtained the knife to protect his housemate.^[3]  The respondent’s Counsel said that the applicant’s first version accorded with her instructions which were that the applicant obtained the knife and that a struggle ensued during the course of which the respondent managed to get hold of the knife and cut the applicant.^[4]

6. [6]
   The respondent’s Counsel stated that the applicant previously owned a convenience store at which the respondent’s partner worked. She said that on occasions cannabis sativa was purchased from the applicant. She stated that the background to the offence was that earlier in the day a quantity of cannabis was purchased from the applicant. At that stage the applicant did not have $50.00 change that was owed. The respondent consumed a considerable quantity of alcohol and later decided to return to the applicant’s residence to obtain the sum of $50.00 that was said to be owed to him.^[5] 

7. [7]
   When sentencing the respondent the learned sentencing judge said:

“There were two versions by the complainant as to how a knife entered the exchange between the two of you.  I will sentence you on the assumption that he grabbed the knife before he charged at you.  There had already been some blows between the two of you in the kitchen.  But the fact that he introduced a knife into the struggle is not really to the point.  He did so because at that stage the argument had become violent and you were armed and blows had been struck.

Unfortunately in the struggle between the two of you, and circumstances that aren’t clear to me, the knife was used in some way and the complainant suffered serious damage to his hand.”

 Injuries and medical reports

8. [8]
   The applicant underwent surgery at the Gold Coast Hospital. He was found to have lacerations to two tendons and a nerve in his left forearm. The injuries were repaired and he was put in a plaster. He was discharged from the Gold Coast Hospital on 3 January 2008. The applicant subsequently underwent hand therapy. He was seen three times in the Orthopaedic Outpatient Clinic. According to the report from the Gold Coast Hospital, Department of Orthopaedics, dated 13 May 2008^[6] the applicant was last seen on 14 February 2008 at which time it was noted that he was slowly starting to move his fingers.  There appeared to be minimal recovery from the nerve at that stage.  The applicant failed to attend an appointment on 20 March 2008 at the Orthopaedic Outpatient Clinic.  He has not been seen at the Outpatient Clinic since that time. 

9. [9]
   There is a report from Dr Anne-Louise Swain, Clinical Forensic Medical Officer, dated 11 June 2009^[7] that was obtained by the Director of Public Prosecutions for the purpose of the prosecution against the respondent.  Dr Swain did not examine the applicant.  Her opinion is based upon an examination of the medical records from the Gold Coast Hospital.  Dr Swain expresses the following opinion:

“Mr Kane’s median nerve was completely severed in the forearm which, if left untreated, would result in an inability to oppose the thumb.  If the thumb cannot be opposed then it cannot be moved to touch the fingers of that hand in order to grip objects. 

Mr Kane’s flexor digitorum profundus and flexor digitorum superficialis muscles were completely severed which, if left untreated, would result in an inability to flex the fingers.  If the fingers cannot be flexed then they cannot be used to grip objects.

This injury would have interfered in the health and comfort of the patient as evidenced by the fact that he received pain relief, was admitted to hospital and underwent an operation to repair the tendons and nerve.

Without treatment this injury would have caused a permanent injury to health in that he would not have been able to grip anything with his left hand.”

10. [10]
    In his victim impact statement dated 18 June 2009^[8] that was tendered on sentence, the applicant said that since the assault he has been frustrated, angry, depressed and anxious.  He says that doctors have recommended that he undergo further physiotherapy as he has no dexterity in his left hand and arm.  He experiences difficulty cooking because he is only able to use one hand and arm.  He also said that at that time he was unable to drive a motor vehicle.  He said that he is unable to do simple every day tasks such as tying up his shoe laces.  He sleeps with his hand elevated. 

The applicant’s submissions

11. [11]
    Mr Muir for the applicant submits that the following injuries in the Compensation Table are applicable:

12. [12]
    The total of the percentages sought by the applicant is 83% of the scheme maximum which would lead to an award of $62,250.

The relevant principles

13. [13]
    The application for compensation must be considered on the facts accepted by the sentencing judge.^[9]

14. [14]
    The assessment of compensation is governed by Part 3 of the Criminal Offence Victims Act 1995.  It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)).

15. [15]
    The maximum amount of compensation provided under the Act is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The amount of compensation cannot exceed the scheme maximum (s 25(2)). The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the Compensation Table (s 25(4)). The assessment of compensation does not involve principles used to decide common law damages for personal injuries (s 25(8)).

16. [16]
    The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[10]  The assessment requires consideration of the most serious example of the relevant injury.  The injury being considered must be scaled accordingly.  The court explained:

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34 per cent.  This illustrates the point that the compensation able has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”^[11]

17. [17]
    If the applicant suffers more than one of the injuries in the Compensation Table, s 25(3) requires that the applicable amounts be added together, but if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid. Section 26 of the Act is aimed at ensuring that harm that should be treated as a single state of injury is treated as a single injury, but as is explained by McMurdo P in Riddle v Coffey^[12] this does not prevent the relevant amounts in the Compensation Table from being added together.  However Her Honour said:

“The Act 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 the Act, and appeal courts will not lightly interfere with these exercises of discretion.”^[13]

18. [18]
    In that case the applicant suffered multiple injuries inflicted by a cane knife. He suffered injuries to his head, back, left forearm, thigh, shoulder and neck. The primary judge assessed compensation by reference to each individual injury and also made an award under item 25 for moderate stab wounds. In doing so the Court of Appeal held that the primary judge had effectively twice compensated the applicant for the same injury.^[14]

19. [19]
    Mr Muir’s submissions invite the court to assess compensation on the erroneous basis adopted by the primary judge in Riddle v Coffey.^[15]  It is inappropriate to do so. 

20. [20]
    The Court of Appeal considered another case involving multiple injuries in Wren v Gaulai.^[16]  Fraser JA said:

Assessment

21. [21]
    The applicant seeks compensation only for his physical injuries. Although he said in his victim impact statement that he has been depressed and anxious, he does not elaborate upon that in his affidavit. And there is no medical evidence to substantiate the claim of depression. Mr Muir for the applicant did not seek an award for mental or nervous shock (Items 31, 32 and 33 in the Compensation Table), which is a recognisable psychiatric illness or disorder.^[17]

22. [22]
    The amounts sought by Mr Muir are the highest in the range of percentages for each injury in the Compensation Table. The range for Injury 2, bruising/laceration (severe) is 3 to 5%. Mr Muir sought 5%. The range for Injury 16, loss of use of arm (displaced and immobilised) is 8% to 30% of the scheme maximum. Mr Muir sought 30%. The range for Injury 17, loss of use of finger is 2% to 8%. Mr Muir sought 8%. The range for injury 26, stab wound (severe) is 15% to 40%. Mr Muir sought 40%.

23. [23]
    This approach effectively involves duplication of compensation for the same injury. Moreover, awards for each injury at the highest amount provided for in the Compensation Table does not reflect the requirement to scale the injury according to seriousness.^[18]

24. [24]
    A difficulty in assessing the seriousness of the applicant’s injury is the limited medical evidence that has been filed. Dr Swain’s report was obviously prepared with a view to satisfying the definition of grievous bodily harm in s 1 Criminal Code for the purpose of the prosecution of the respondent.  Dr Swain simply said that without medical treatment the applicant would have suffered a permanent injury.  There is no evidence in relation to the extent of any permanent disability.  It may be accepted that the applicant suffered ongoing difficulties as outlined in his victim impact statement.  His affidavit does not elaborate on those difficulties.  Moreover, therapy at the Orthopaedic Outpatient Clinic at the Gold Coast Hospital may have improved the applicant’s condition, yet he has not attended there since 14 February 2008.

25. [25]
    The photographs of the applicant taken by police^[19] show extensive bruising to his left arm. 

26. [26]
    Taking into account the significant impact upon the applicant I would assess his injury under Item 26, stab wound (severe). The range is 15% to 40%. Bearing in mind the aspects of the applicant’s injury that I have outlined and the requirement to scale his injury according to seriousness I would assess the injury at 25% of the scheme maximum leading to an award of $18,750.

27. [27]
    As I have taken into account the difficulties experienced by the applicant in the use of his arm and adopted the view that those difficulties are likely to continue in assessing the severity of the stab wound, any additional award for the other components suggested by Mr Muir would amount to duplication.

Contribution

28. [28]
    Section 26(7) provides:

“In deciding whether an amount, or what amount, should be ordered to be paid for an injury, the court must have regard to everything relevant, including, for example any behaviour of the applicant that directly or indirectly contributed to the injury.”

29. [29]
    The Court of Appeal considered the provision in Hohn v King.^[20]  In that case the respondent was convicted of unlawfully doing grievous bodily harm to and robbing the applicant.  At the time of the offences the applicant intended to purchase marijuana from the respondent.  The primary judge reduced the award of compensation by one-third.  Although the Court of Appeal increased the assessment of compensation, the Court affirmed the reduction by one-third.  Atkinson J would have applied a 20% reduction.  Her Honour carefully analysed a number of cases in which a reduction had been made in the assessment of compensation on account of the applicant’s own behaviour.  One of those cases, Street v Fitzgerald^[21] involved a drug dealer who had been dealing in cannabis and amphetamines from his residence.  His drug dealing caused him to be targeted for an armed robbery. His behaviour was therefore viewed as contributing to his injuries.  Mullins J applied a reduction in compensation of 25%. 

30. [30]
    Atkinson J set out a number of factors that may be relevant to the exercise of discretion under s 25(7) including whether or not the victim was committing an offence at the time of his or her injury, whether the victim offered violence to the offender and whether the victim was armed or used a weapon.^[22]

31. [31]
    It is necessary to consider the extent to which the applicant’s conduct contributed to his injuries.

32. [32]
    The issue concerning the sale of drugs by the applicant was not fully explored at the sentence hearing. The manner in which the case was presented to the sentencing judge made it unnecessary to embark on a detailed examination of that question. The Prosecutor made no reference to the sale of drugs by the applicant. This was mentioned by the respondent’s Counsel during his submissions. The sentencing judge said, “It seems that you or your partner had purchased some drugs from the complainant earlier in the day and had not received all the change on that transaction.” The applicant was not engaged in the transaction itself at the time he was injured. Moreover, having regard to the limited information placed before the sentencing judge on this issue I consider that it would be inappropriate to reduce the award on account of the applicant’s behaviour in respect of this aspect of the matter.

33. [33]
    The other issue is that the factual basis of sentence was that the applicant introduced the knife to the struggle. However, as was observed by the sentencing judge, that was not really to the point because the applicant did so because the respondent was armed with a tyre lever and behaving violently. I therefore conclude that it would be inappropriate to apply a reduction in the assessment of compensation on account of the applicant’s behaviour.

Order

34. [34]
    I order that the respondent pay to the applicant the amount of $18,750 by way of compensation pursuant to s 24 Criminal Offence Victims Act 1995 for injuries suffered by the applicant by reason of the offence of grievous bodily harm of which the respondent was convicted in the District Court of Southport on 18 June 2009.