DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant Pauline Janelle Herron seeks compensation in respect of injuries suffered by her in respect of an incident which occurred on 8 January 2004 at Bethania. The respondent Raymond John Herron (the applicant’s half-brother) appeared for sentence before me on 24 August 2007 in respect of one count of grievous bodily harm. The respondent was sentenced to 18 months imprisonment with an immediate parole release date.

Facts

2. [2]
   The Schedule of Facts tendered on the sentence^[1] indicates the following:

“On 8 January 2004 the [respondent] was living at his parent’s home in Bethania.  The [applicant], the respondent’s sister, returned home to visit her parents. 

When the [respondent’s] and [applicant’s] mother returned both went downstairs to see her.  The [respondent] began harassing his mother about being able to use the house phone as there had been a restriction put on it.  The mother agreed to allow the [respondent] to use the phone but told him that he would need to wait.

The [respondent] apparently continued to be disrespectful and continued to harass his mother about the phone.  The [respondent] then pushed [the applicant] and [the applicant] pushed the [respondent] back.  This escalated to the point where the [respondent] gave [the applicant] a large shove which sent her through into the living room and toward the front bay window of the house.

As a result of this [the applicant] fell damaging her ankle.”

Injuries

3. [3]
   The Schedule of Facts notes:

“That as a result of that injury it was noted that [the applicant] had fractured one of her ankle bones and had tenderness and swelling of the right ankle.  This required internal fixation of screws and ongoing physiotherapy.”^[2]

4. [4]
   The applicant presented to the Logan Hospital on 8 January 2004, and the report of Dr Paul Schmidt, Medical Officer, Logan Hospital, states^[3]:

“An x-ray revealed a fractured neck of the talus bone of [the applicant’s] right ankle. 

This injury required operative treatment with internal fixation using two screws.  This operation was carried out on 23 January 2004…

On 16 December 2004, the patient returned to theatre to have the screws removed.  The lateral screw was removed.  The patient has been followed up in the orthopaedic outpatient’s department and has received physiotherapy to increase the range of movement in the ankle.

The prognosis for this patient is that the ankle range of movement will probably not return to normal.  There is a significant risk of arthritis long-term.  Chronic pain may become a significant issue and the patient may require a further operative procedure to fuse the ankle to relieve the pain.  It is difficult to predict if and when this may occur. 

This patient was seen on 11 April 2005 when it was noted in outpatient notes that decreased range of motion was evident objectively.  The pain did not appear to be an issue from the notes. 

Even with the medical intervention [the applicant] has received, this injury may still lead to a permanent disability.”

5. [5]
   Professor Michael Schuetz, Orthopaedic Trauma Surgeon, provided a report dated 27 March 2009^[4].  Professor Schuetz concludes as follows:

[The applicant] is a 37 year old, healthy woman.  During a dispute with her brother, she was pushed backwards and tripped over a step on the bottom of a window.  This occurred on 4 January 2004 and she sustained a talus neck fracture of the right ankle. 

After surgical management at the Logan Hospital in January 2004, [the applicant] never regained her previous physical condition.  The injury and its clinical course and residual situation has limited her daily as well as professional activities.  Due to the injury, she was off work for 1 ½ years and only gradually returned to about 70% of her work level compared to pre-injury.

[The applicant] can cope with the situation to an extent that she is wearing an orthotic.  This protects the ankle and gives her some additional stability.  The right ankle is almost stiff.”

Professor Schuetz considered that the applicant had suffered an injury equivalent to 20% whole person impairment.  Professor Schuetz noted that the only recommendation which might improve the applicant’s situation was to consult a podiatrist but concluded that, “If the pain and the discomfort from the ankle joint increases over time, considerations must be given to a tibiotalar fusion or even, at a later stage, a talocalcaneal fusion.  Osteoarthritis in the x-ray from 23 March 2009 is already present and may continue to develop over time.  Any further surgical management will be triggered by the clinical conditions”^[5].

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.^[6] 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”.^[7] Ultimately the court should ensure that there is compliance with “the use of the methodology prescribed by [COVA] s 25 [which] is mandatory”.^[8]

Compensation

7. [7]
   Ms Chekirova on behalf of the applicant seeks compensation as follows:

Item 20 – Fracture/loss of leg/ankle (severe) – 8%-25%

8. [8]
   Given the nature of the injury to the ankle, Ms Chekirova submits an assessment under this item between 15% and 20% of the scheme maximum. Given the catastrophic consequences of the ankle injury, including the immediate pain; the surgical intervention; the immobilising of the foot for three months post surgery; the use of crutches for a year; the removal of the pins in December 2004^[9]; the fact that the applicant was off work for about 1 ½ years; is unable to work in the same capacity for the same hours as she did prior to the injury; suffers ongoing pain which limits daily activities^[10]; has suffered a 20% whole person impairment; and may require further surgery in time, it seems to me that an award should be made towards the upper end of the applicable range.  Accordingly I award 20% of the scheme maximum ($15,000) pursuant to Item 20.

Item 32 – Mental or nervous shock (moderate) – 10%-20%

9. [9]
   The report of Mr Luke Hatzipetrou, Clinical Psychologist, concludes that the applicant:

“Experienced a degree of psychological decline which was likely to be moderately severe.  Specifically [the applicant] was likely to experience symptoms consistent with acute stress disorder following the offence which appeared to evolve into major depressive episode with ongoing adjustment problems.”

Mr Hatzipetrou recommends comprehensive psychological treatment including cognitive behavioural therapy and assessment by a consultant psychiatrist, including 12-15 sessions of psychotherapy^[11].

10. [10]
    In these circumstances Ms Chekirova submits an appropriate assessment would be in the order of 15% of the scheme maximum.  I accept that submission and accordingly I award 15% ($11,250) pursuant to Item 32.

Contribution

11. [11]
    The applicant has not in any way, either directly or indirectly, contributed to her own injury^[12].

Conclusion

12. [12]
    Accordingly I order that the respondent Raymond John Herron pay the applicant Pauline Janelle Herron the sum of $26,250.