Tooley v Eyears[2010] QDC 20

3. (1)
   A laceration to the lip which required 10 sutures;

3. (2)
   A fractured jaw (not requiring specific treatment but which caused the applicant significant ongoing pain and difficulties in his life);

3. (3)
   A fractured left wrist with a shattered radius bone requiring surgery to remove the bone fragments and the insertion of a plate;^[7]

3. (4)
   A closed head injury.^[8]

3. (1)
   Item 1 – bruising/laceration etc (minor/moderate) – 1% - 3%.

 Mr de Plater submits that the laceration to the lip which required 10 sutures should receive an award at the top of the Item 1 range (ie 3%). An award at this level was conceded by Mr Trout who appears on behalf of the respondent. Accordingly, I award 3% ($2,250) pursuant to Item 1.

3. (2)
   Item 5 – Loss or damage of teeth – 1% - 12%.

 Mr de Plater submits that an award should be made at 5% of the Scheme maximum pursuant to Item 5, as a result of the broken denture suffered by the applicant during the course of the assault.^[9] Mr de Plater argues that a denture is an appliance, “fully within the body”, and relies on a definition from the Oxford English Dictionary defining, “denture” as “a set of (esp artificial) teeth”. Mr de Plater refers also to the decision of Everson DCJ in Jacobson v Hearn [2009] QDC 184 where his Honour accepted that, “the claimed damage to [the applicant’s dentures] was, together with the loss of a tooth, consequential upon injuries sustained in the assault which was the subject of the application for compensation.^[10]

Mr Trout for the respondent submits that the reference to “teeth” should be read down to refer to natural teeth rather than prosthetic teeth. Criminal Offence Victims Act 1995 (Qld) (COVA) s 20 defines “injury” relevantly to mean “bodily injury” … or “any injury specified in the Compensation Table”. In the circumstances, mindful of the decision of Everson DCJ, it is my view that the broken denture is not a “bodily injury” and therefore is not able to be compensated within the terms of Item 5 of Schedule 1. In my view, it is indeed akin to the breaking of a pair of spectacles or a hearing aid i.e. property damage rather than “bodily injury.” Accordingly, I make no award pursuant to that Item.

3. (3)
   Item 7 – facial fracture (moderate) – 14%-20%

Mr de Plater submits that an award for the fractured jaw suffered by the applicant should be made at the mid-range of Item 7 (facial fracture (moderate)). Mr de Plater stresses that the applicant was punched repeatedly, was knocked to the ground, rendered unconscious and was punched while unconscious with a resulting lacerated lip (requiring 10 sutures), the breaking of a denture, lacerations inside his mouth and a fractured jaw and cheekbone. The material placed before me in respect of the applicant’s “facial fractures” is limited. The Schedule of Facts^[11] contains no reference to either the fractured jaw or the fractured cheekbone. The applicant’s Victim Impact Statement^[12] relevantly states, “I was told that my jaw had been fractured as had my cheekbones.” The effect of the facial injuries (and other injuries) is referred to in the applicant’s Victim Impact Statement in which he states, “During the next few days [after the assault] I had to rely on pain killers to ease the pain of my injuries but still suffered during this time, I was unable to eat solid food and had to eat soup for at least a week.” The applicant states further, “My sinuses have suffered badly since the assault and are constantly blocked, I also have nose bleeds which occur at any time day or night, this causes embarrassment to me depending where it happens.”^[13] In the applicant’s Addendum Impact Statement^[14] the applicant relevantly states (as of the date of the Victim Impact Statement on 6 March 2008), “I still have problems with my sinuses and they are continuously blocked [and] my jaw bone clicks when I move it.”

The prosecutor stated in submissions “[The respondent] also sustained a fractured jaw which did not require specific treatment.”^[15] As Mr Trout, on behalf of the respondent, points out, there is no expert evidence in respect of the facial injuries. In particular, the report of Dr Ian Cheung (Orthopaedic Registrar – Princess Alexandra Hospital) makes no reference to the fractured jaw or cheekbone,^[16] and the report of Dr Greg Gillett, Orthopaedic Surgeon, contains under the heading “History” a statement that, “Your client [the applicant] states that in this assault he sustained a … fracture of the jaw and cheekbones” that “were treated non-operatively.”^[17] Dr Gillett offers an opinion in respect of the wrist injury suffered by the applicant, which will be dealt with subsequently in the judgment, but relevantly states in respect of the facial fracture item that, “Expert opinion may be required in relation to the jaw and facial injuries.”

In the absence of any relevant expert evidence, while accepting that the applicant has suffered a fractured jaw and cheekbone, it is, in my view, not possible to award anything more than the minimum provided for in Item 6 (facial fracture - minor), namely, 8% of the Scheme maximum. Accordingly, I award 8% ($6,000) pursuant to Item 6.

3. (4)
   Item 9 – Fractured skull/head injury (no brain damage) – 5% - 15%

Mr de Plater on behalf of the applicant submits that an award should be made in the mid range of Item 9, namely, 10% of the scheme maximum. Again, an assessment of an appropriate award pursuant to this item is difficult in the absence of expert evidence. Dr Ian Cheung, Orthopaedic Registrar, notes (upon review of the clinical records of the PrincessAlexandraHospital) that the applicant on presentation at the Hospital on 18 December 2006 was reviewed by the “Emergency Officer” and was noted to have … “a closed head injury” which “needed medical attention”.^[18] The report of Dr Gillett^[19] goes no further than relaying the history provided by the applicant to Dr Gillett, namely, that “he had head injury” without providing any opinion in respect of that injury. The applicant himself in his Victim Impact Statement refers to “memory loss after the event” and “regaining consciousness in front of the Hospital in the vacant lot [he] believed to be an ambulance”. In the circumstances, there being no expert evidence on the issue of the seriousness of the “head injury” any assessment can, in my view, only be at the bottom of the relevant range (ie 5% of the scheme maximum). Accordingly, I award 5% ($3,750) pursuant to Item 9.

3. (5)
   Item 16 – Fracture/loss of use of arm/wrist – 8% - 30%.

Mr de Plater on behalf of the applicant submits that an assessment should be made at the mid point of Item 16, namely, 16% of the Scheme maximum. The report from Dr Ian Cheung notes that on admission, the applicant was noted to have “closed distal radial fracture on the left side” which “needed medical attention.^[20] The Schedule of Facts^[21] noted that the injuries to the wrist amount to a “comminuted fracture to the left wrist (bone crushed)” which amounted to “grievous bodily harm”. The Schedule notes that “[the applicant] received surgery on his left wrist where the fragments of bone were removed and a plate inserted”.^[22] The report of Dr Greg Gillett^[23] notes that the applicant’s wrist injury was surgically treated by way of, “open reduction internal fixation of the left wrist using a volar approach” and the applicant required, “rehabilitation involving splintage and hand therapy.” Dr Gillett noted that the fracture has healed and the plate and screws had remained “in situ”. Dr Gillett was advised by the applicant that he “had ongoing problems” associated with pain in the left wrist, both ulnar and radial side”. The applicant reported swelling from time to time aggravated by activity, restricted movement, grip a little restricted with pins and needles and numbness at time. The applicant reported problems with holding things, aching when working in the garden, guitar playing restricted in both limited movement as well as both fatigue and pain and an inability to drive a manual car.^[24] Dr Gillett considered that the applicant had “reached maximum medical improvement from an orthopaedic perspective, had measurable impairment, amounting to 10% impairment of upper extremity function or 6% loss of the whole person function due to the loss of motion”, a condition that was likely to remain as it was for the long term. Dr Gillett considered that further operative treatment could be considered in the form of removal of the plate and screws and that the applicant would require the use of simple analgesia in the long term.^[25] It is clear that the applicant continues to play guitar.^[26] The applicant in an affidavit filed in response relevantly states that he was, “unable to pay the guitar at all for at least 6 months” after the assault, and has not been able to return to playing “lead guitar” which he had done in bands for many years prior to the assault supplementing his “daytime income”. The applicant states that he no longer plays lead guitar but plays “acoustic/rhythm guitar” and plays with “pain and discomfort” which limits his performing capacity.^[27] The applicant also notes that “as a result of the injury suffered … from the assault, [he] had to give up [his] job as a field assistant with the Department of Primary Industries.” The applicant indicates that he has not been able to replace that lost regular income with earnings from playing guitar professionally.^[28]

Taking into account the consequences of the injuries suffered and the report of Dr Gillett, it does, in my view, seem appropriate to award 20% of the scheme maximum ($15,000) pursuant to Item 16. This, I consider, appropriately recognises the serious and ongoing effect of the wrist injury even though the applicant has been able to return to some of the activities (including guitar playing) that he undertook prior to the assault.

3. (6)
   Item 27 – Facial disfigurement or bodily scarring (minor/moderate) – 2% - 10%.

 Mr de Plater submits that the applicant suffered a “7 cm volar scar” on his left wrist, which in Mr de Plater’s submission should be separately assessed. I accept the submission that an assessment at the bottom end of the relevant scale (ie 2% of the scheme maximum) is appropriate. Accordingly, I award $1,500 pursuant to Item 27.

3. (7)
   Item 32 – mental or nervous shock (moderate) – 10%-20%

Mr de Plater submits that an assessment should be made at 15% of the scheme maximum for the mental or nervous shock suffered by the applicant as a result of the assault. The applicant was examined by Mr Peter Stoker, Psychologist, on 3 June 2008 and a report was provided dated 16 June 2008.^[29] Mr Stoker diagnoses the applicant as suffering from post traumatic stress disorder (PTSD) and considers that the applicant would benefit from 17 sessions of cognitive behavioural therapy to desensitise him to the trauma of the assault.^[30] Mr Stoker notes that the applicant suffers ongoing grief from the death of his daughter in a motor vehicle accident in 1974, as well as suffering from problems in his marital relationship. Mr Stoker considers that the applicant has suffered “a mild to moderate degree of mental and nervous shock”. Although it might be considered to be “swearing the issue”, Mr Stoker ventures the opinion that the applicant’s “percentage of permanent partial psychological disability [is] in the upper level of the mild range or the lower level of the moderate range.”^[31] Mr Trout on behalf of the respondent submits that an award should be made pursuant to Item 31 at 8% (ie towards the top of the minor range). In my view, an appropriate award would be 10% of the scheme maximum, which relevantly falls either at the top of Item 31 (mental or nervous shock (minor)) or at the bottom of Item 32 (mental or nervous shock (moderate)). Accordingly, I award $7,500 for the mental or nervous shock suffered by the applicant.