Gammon v Richardson[2010] QDC 129

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 for personal injuries suffered by him as a consequence of a glassing by Craig Paul Richardson on 21 December 2000. On 19 February 2007, Mr Richardson was convicted, on his own plea of guilty, of one count of wounding.

The originating application was filed on 23 December 2009, by which time the Criminal Offence Victims Act had been repealed by section 149 of the Victims of Crime Assistance Act 2009.  The applicant's entitlement to claim under section 24 of the repealed Act was, however, preserved for a time by sections 154 and 155 of the new Act.  These proceedings were brought within the requisite time.

Mr Richardson, who is named as a respondent in the proceeding, had, unbeknown to the applicant at the time, died before the proceedings were commenced.  That is no bar to the proceedings being instituted or continued. 

The right to claim compensation is a cause of action which, upon Mr Richardson's death, became a cause of action against his estate. (See section 66(1) of the Succession Act 1981).  While the proceedings name Mr Richardson, rather than his estate, as respondent, section 93N(1) of the Supreme Court of Queensland Act 1991 provides that the proceeding is taken to have been brought against Mr Richardson's estate.  Further, by reason of section 93N(3), any order made by the Court binds the estate even if no grant of representation has been made at the time of the order.

It is unlikely that any grant of representation will be made in the case of Mr Richardson's estate.  The material establishes that he died intestate.  In the absence of an executor, the property of the deceased devolved to and vested in the Public Trustee pursuant to section 45(1) of the Succession Act.

Ordinarily, the Public Trustee would have an interest in protecting the assets of the estate from the applicant's claim.  The material establishes, however, that Mr Richardson died without any substantial assets but with outstanding liabilities.  In any event, the Public Trustee has now been given notice of these proceedings and has said that it intends to take no action in respect of the matter.

Counsel for the applicant properly drew my attention to section 28(1) of the Criminal Offence Victims Act, which requires the convicted person to be notified of the application before an order is made against that person.  In this case it is not possible to give notice to Mr Richardson, since he is deceased and any order will be made against his estate.  To the extent that non-compliance with section 28(1) is involved, I do not consider that goes to the Court's jurisdiction to make an order.  My conclusion to the contrary, in circumstances such as these, would not sit comfortably with the evident purpose of the compensation provisions of the legislation (see Project Blue Sky Inc & Ors v Australian Broadcasting Authority (1998) 153 ALR 490 at para 93).

The incident giving rise to the offence occurred at a hotel in the latter hours of the evening.  The applicant, and Mr Richardson, had got into a verbal altercation.  Mr Richardson ultimately punched the applicant to the side of his head.  Mr Richardson was holding a glass at the time and the applicant suffered lacerations.

Following the incident, the applicant attended the Logan Hospital emergency department.  His injuries were noted as follows:

 "The patient had a deep laceration to the left side of his face, extending from the lower border of his left nostril, inferiorly along the left naso-labial groove and then extending laterally from the left corner of his mouth, approximately six centimetres across his left cheek.  The muscle fibres of his facial muscles were visible.  The lacerations were not full thickness, in that they did not penetrate the buccal mucosa.  The parotid duct was not visible."

The applicant was admitted to hospital, where he underwent surgery to repair his injuries under general anaesthesia.  Although his wounds have healed well, he has been left with a scar on the left side of his face, extending from his left nostril to the left side of his chin.

I accept the submission on behalf of the applicant that the lacerations are obviously compensable.  Initially, compensation was sought under item 1, however, upon further reflection, an award under item 2 for severe bruising / laceration was sought.  I accept that the lacerations appropriately fall within that category, although they are not at the most severe end of the range and accordingly, I assess compensation at 4 per cent of the scheme maximum, for the lacerations.

Insofar as the scarring is concerned, I have had the benefit of inspecting copies of photographs of the scarring.  Initially it was submitted that the scarring should be compensated at the amount of 5 per cent under item 27 of the schedule. However, upon reflection, that submission was changed to seek the compensation under item 28 for severe facial disfigurement or bodily scarring. In my view, the scarring is appropriately compensated for, in this case, by an award of 10 per cent of the scheme maximum.  I therefore allow a total of 14 per cent in relation to the totality of the facial injuries.

The applicant also claims for mental or nervous shock.  The applicant deposes that, as a result of the incident and the residual scarring, he now finds himself reluctant to go out in a social atmosphere. He has lost a great deal of self-confidence.  He says he suffers from anxiety and depression.  He has been prescribed anti-depressant medication and also anti-anxiety medication, although it appears that there have been periods where he has taken himself off that medication, to his detriment.

On 30 July 2008 the applicant was examined Ms Joanne McDonald a psychologist.  Her report notes his chronic depression, anxiety and anger problems.  She noted that:

 "Joe claimed that since the incident, he lost his girlfriend, his job and his house.  He abused alcohol, speed and marijuana.  He moved back to his family in Cranbourne from Queensland because he became unable to manage on his own up there.  Now Joe Gammon says that he suffers from anxiety attacks that feel, "a bit like a heart attack," he wakes up crying and he is very depressed about his facial scarring.  He feels that people are looking at his scarring and he does not want to be seen."

In her view he requires considerable treatment and a determined effort over a couple of years in order to achieve an improvement. 

The report notes also that the applicant's troubled early background.  In that regard she notes:

 "During our consultation, Joe Gammon discussed his childhood and adolescent background.  His mother died when Joe was three of cervical cancer and his father was an alcohol and a womaniser.  He witnessed a lot of violence in his earlier years.  His uncle and aunt brought up Joe who were more stable and whom he now sees occasionally.  He lives now with his brother, Joe's own girlfriend and his father, who has not changed his ways."

She says that this background has had some influence but she expresses the opinion that the shock of the attack by Mr Richardson and the resulting injuries have had a "profound and negative impact" upon the applicant and are responsible, at least in some part, for the situation in which he now finds himself.

Where there is a single state of injury produced by a number of factors, the Court must do its best to make an allowance for their contribution (SAY v AZ; ex parte A-G (Qld) [2006] QCA 462).  Ms McDonald was reluctant to assess the appellant’s impairment in percentage terms, without the input of other professionals, including a psychiatrist.  The applicant's solicitor prevailed upon her to give a percentage assessment without that input, so as to save costs.  She obliged by providing an addendum, in which she provided an assessment, in terms of a percentage of the scheme maximum, which should be allowed not only for the mental and nervous shock but for the laceration and facial disfigurement as well.  In doing so she went beyond the bounds of her qualifications.

As her addendum itself notes, "I do not consider myself fully qualified to be the sole judge of Joe Gammon's impairment."  An assessment in terms of percentages of the compensation table is ultimately a matter for the Court, having regard to the evidence of the nature and extent of the injuries suffered.  For that reason, I have not placed weight upon the addendum.  It is unfortunate that a report from a psychiatrist was not obtained.

Notwithstanding those matters, the material satisfies me that the applicant suffered mental or nervous shock at least within the meaning of that expression adopted by Thomas JA of R v Kazakoff; ex parte Ferguson (2001) 2 Qd. R. 320 and the cases which followed it. More recently in RMC v NAC [2009] QSC 149, Byrne SJA adopted a narrower interpretation of that expression.  The wider view is, however, the one that has generally been applied and I am persuaded to adopt that approach, in the absence of binding authority to the contrary (see also O'Gorman v Selff [2010] QDC 13).

I am satisfied that the applicant's mental or nervous shock falls within the moderate category, although I propose to adopt a lower percentage on the compensation scale as a broad brush way of allowing for the role of other factors.  In the circumstances, the evidence does not enable me to do that with any great precision.  However, doing the best I can in the circumstances, I will assess compensation under this head in relation to the injuries suffered by reason of the offence at 10 per cent of the scheme maximum.

Accordingly, I assess compensation in the total amount of 24 per cent of the scheme maximum or $18,000. 

In assessing compensation, the Court must have regard to everything relevant, including any behaviour of the applicant that directly or indirectly contributed to the injury.  In Hohn v King [2004] QCA 254, Atkinson J set out some of the relevant factors to consider. 

The applicant in this case was involved in a verbal altercation with Mr Richardson and had moved in his direction before being punched.  The evidence does not establish, however, that the applicant himself assaulted Mr Richardson, or threatened him, or behaved in a way which could fairly be said to have caused or contributed to the wounding.  The actions of Mr Richardson were grossly disproportionate in response to the situation. 

This case is quite different from Jones v Coolwell [2001] QSC 130 to which I was referred.  I am satisfied that the amount of compensation should not be reduced on account of the applicant's own conduct.

Accordingly, I order that the estate of Craig Paul Richardson pay the applicant the sum of $18,000 by way of compensation.