DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s. 24 Criminal Offence Victims Act 1995 for physical and emotional injuries caused by an attack by the respondents on 4 April 2008.  The Criminal Offence Victims Act 1995 was repealed by s 149 Victims of Crime Assistance Act 2009 which commenced on 1 December 2009. However the application was filed on 3 December 2009 which is before the 2 month expiry period contained in the transitional provision in s. 155(2)(b). Therefore the Court is required to hear and determine the application under the relevant provision (s. 155(3)).

2. [2]
   The respondents pleaded guilty to grievous bodily harm on 9 February 2009. They were each sentenced to imprisonment for two and a-half years, suspended after 6 months, for an operational period of 3 years.

3. [3]
   On 5 June 2009 the Court of Appeal dismissed appeals against the sentences by the Attorney-General.^[1]

4. [4]
   The respondents have been served with the application and supporting affidavit material.^[2]  There has been no appearance by or for them. 

Circumstances of the offence

5. [5]
   At the time of the offence the applicant was a 19 year old university student. The first respondent was 17 years of age and the second respondent was 18 years of age.

6. [6]
   On 4 April 2009 at approximately 1:30am the applicant was sitting on the side of the road in the Brisbane CBD.

7. [7]
   The respondents began yelling abusive comments at the applicant such as, “where’s your boyfriend?” and “you can suck my dick if you want”. The applicant gave the respondents the “finger”.

8. [8]
   The first respondent approached the applicant and asked him why he gave them the finger. The applicant said nothing. The first respondent then hit him in the head with an open hand. The second respondent then punched the applicant to the head. Both respondents then kicked the applicant to his upper chest. The second respondent then struck the applicant to the head with an open hand again.

Injuries and medical reports

9. [9]
   The applicant did not realise the extent of his injuries at the time of the offence. The applicant outlined in his affidavit the immediate effects of the assault which included bleeding from the eye and severe throbbing of his head. He described the pain as excruciating.^[3]

10. [10]
    It was not until the morning of 4 April 2008 that he realised the extent of his optical injuries when he woke to find he had a blind spot in his right eye.^[4] 

11. [11]
    The applicant went to the Royal Brisbane Hospital emergency department. He returned on 5 April 2008 for further tests.^[5]  Dr Christopher Layton, medical officer, Royal Brisbane Hospital, said in his report dated 5 June 2008 that the following ophthalmic injuries to the applicant’s right eye were documented:^[6]

-2 chorodial ruptures with one involving the fovea (central vision);

-Vitreous haemorrhage;

-Retinal tear;

-Traumatic hyphaema;

-Retinal haemorrhage;

-Retinal detachment.

12. [12]
    The applicant was treated with 59 shots of argon laser treatment. He returned to the hospital for a further 50 shots of argon laser treatment on 7 April 2008. On 16 April 2008 he underwent a scleral buckle procedure and cryotherapy to his right eye to repair the detached retina. He used eye drops for approximately 5-6 weeks following the attack.^[7] Dr Layton states that the vision in his right eye is limited to counting fingers and due to the nature of the injury will not improve further.^[8]

13. [13]
    The applicant states that for approximately 6 weeks following the assault he suffered from migraine headaches, and nightmares. He still continues to suffer from headaches approximately every 2-3 days.^[9] He was unable to watch television, play sport or read.^[10] He was also unable to drive a car for approximately 6 to 8 months.

14. [14]
    The applicant states that he became uneasy and stressed. He ceased his studies following the assault, however intended to return in July 2009. He was advised by the university that he could return on a probationary basis. He was intending to study one subject throughout the semester. If he passed the subject and completed a further subject over the summer semester he would be able to return to full time study in 2010. His vision has not improved which causes him concern in regard to his ability to finish his study and gain employment as a mechatronic engineer. His social life has deteriorated as he no longer wishes to go out to places which involve alcohol or crowds.^[11]

15. [15]
    The applicant was examined by Dr John Harrison, Ophthalmologist and Neuro-ophthalmologist, on 5 January 2009. In his report dated 28 January 2009^[12] Dr Harrison states:

“Visual acuity in the right eye was <6/60 unaided but improved to 6/36 partly (-4.50 sphere), with eccentric fixation. The left eye could see 6/6 unaided.^[13]

…

On the right, there is a gliotic scar over the right optic disc, but it appeared otherwise pink and healthy. There is a choroidal rupture passing through the macula area extending to the vascular arcades both above and below.

There is a retinal tear in the temporal periphery, which has been surrounded by laser treatment. There is scleral buckling indentation present from approximately 11.30 o’clock to 4.30 o’clock, with chorio retinal scarring over the surface of the scleral indentation, which I assume is the result of his surgical treatment. Inferiorally there is some old vitreous blood still present, but I cannot see any untreated retinal holes.^[14]

…

Visual acuity has been severely affected, and is unlikely to improve over time, and I do not believe there is any active treatment that will improve things further.”^[15]

16. [16]
    The applicant was examined by Dr Gary Larder, Consultant Psychiatrist, on 30 March 2009. In his report dated 27 April 2009^[16] he states that the applicant suffers from depressive features including, having nothing to look forward to, accomplishing little, lack of enjoyment in life, lack of motivation and thoughts of self harm.^[17]

17. [17]
    Dr Larder diagnoses the applicant with an anxiety disorder which he states could also be called a chronic adjustment disorder. He states that the applicant suffers from stress and anxious mood which fluctuates depending on his exposure to reminders of the assault.^[18]

The applicable principles

18. [18]
    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)).

19. [19]
    The maximum amount of compensation provided under the Criminal Offence Victims Act 1995 is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness. 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 applying principles used to decide common law damages for personal injuries (s 25(8)).

20. [20]
    If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).^[19]  The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[20] 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 table 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.”^[21]

Assessment

21. [21]
    Mr Lynch for the applicant submits that the following injuries in the compensation table are applicable:

22. [22]
    The total sought by Mr Lynch on behalf of the applicant is 93%-98% of the scheme maximum which would lead to an award of $69,750 to $73,500.

23. [23]
    In relation to the bruising and lacerations, the applicant suffered blows to his face and chest area and bleeding to his eye. I would allow 3% of the scheme maximum under item 1 of the compensation table. ($2,250)

24. [24]
    The applicant suffered a forceful blow to the right eye. It is likely that the second blow by the second respondent caused the serious eye injury.^[22] The applicant’s vision has been severely impaired as a result of the attack and will not improve.

25. [25]
    Dr Harrison states that the visual impairment rating is 9%. However he states that the visual acuity score in the right eye is 55 as compared to the left eye with a visual acuity score of 100.^[23] Dr Harrison states in his report:

“As a result of blunt forces to the right eye there has been a disruption of the choroiodal vascular layer beneath the retina, in the central visual area, causing profound loss of central vision.”

26. [26]
    Item 29 loss of vision (in one eye) provides for an award of up to 70% the scheme maximum.

27. [27]
    I am satisfied that the applicant sustained injuries which have caused, in effect, almost a complete loss of vision in the right eye. In my view 70% of the scheme maximum should be allowed. ($52,500)

28. [28]
    The applicant suffers from an ongoing anxiety or adjustment disorder. The range for severe mental or nervous shock in item 33 of the compensation table is 20% to 34%. In my view 20% of the scheme maximum should be allowed. ($15,000)

29. [29]
    The total assessment is $69,750.

30. [30]
    There is no behaviour of the applicant that directly or indirectly contributed to his injuries (s. 25(7)).

31. [31]
    As to each respondent’s liability, at sentence I said:

“In my view, you are both equally culpable, although it may have been the final blow by you, Mr Connor, that caused the victim’s loss of sight. Nevertheless, Mr Kinersen-Smith, you were the first to approach the victim and strike him to the head. This was, in my view, a joint attack for which you are both responsible.”^[24]

32. [32]
    The respondents should be held equally responsible for the applicant’s injuries. Section 26(5) provides that a single compensation order may be made against more than one convicted person. The respondents are jointly and separately liable for the award of compensation. (s  26(6)(c))

Order

33. [33]
    I therefore make the following order:

The respondents pay to the applicant the sum of $69,750 by way of compensation pursuant to s. 24 Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondents in the District Court at Brisbane on 9 February 2009.