DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent James Yeng Thaow pleaded guilty in the Beenleigh District Court before me on 23 July 2009 to one count of grievous bodily harm. The applicant was sentenced to two years’ imprisonment with an immediate parole release date on the date of sentence.

Facts

2. [2]
   The applicant (then a 37 year old male) and the respondent (then a 23 year old male) were involved in a road rage incident at approximately 6.45 pm on 2 March 2008 at Browns Plains Road, Browns Plains.  Each had tailgated the other down Browns Plains Road and each had given the other “the finger”.  Both the applicant and the respondent pulled to the side of Browns Plains Road and parked their vehicles near a 7-11 service station.  Both the applicant and the respondent then got out of their vehicles and proceeded to have a verbal argument.  A fist fight subsequently occurred and the applicant was struck in the face with a closed fist by the respondent approximately three times, and as a result fell to the ground unconscious.  The applicant was transported by ambulance to Logan Hospital and the respondent returned to his car and drove away.  Four witnesses to the altercation state that they did not see the applicant throw any punches^[1].

Injuries

3. [3]
   The applicant was examined at the Logan Hospital by Dr Aimee Murphy. A CT scan revealed “a tripod type fracture of the left face involving a depressed fracture of the left zygoma [cheekbone], the anterior and posterior walls of maxillary sinus, the orbital floor and the infraorbital”.  On 11 March 2008 the applicant was operated on to reduce his zygomatic fracture^[2].

The law

4. [4]
   I refer to and adopt my exposition of the relevant law pursuant to the transitional provisions of the Victims of Crime Assistance Act 2009 (VOCAA) as set out in Kennedy v Faafeu [2010] QDC 21 at paragraph 6.  The application before me complies with the relevant provisions of VOCAA and the now repealed Criminal Offence Victims Act 1995 (COVA).

5. [5]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph 6 of Paterson v Chand & Chand [2008] QDC 214.

Compensation

6. [6]
   Ms Cappellano, who appears for the applicant, seeks compensation as follows:-

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

The statement of Dr Aimee Murphy relevantly notes the following injuries:-

• haematoma of left upper eye lid;

• subconjunctival haematoma of left outer eye;

• superficial graze of left forehead;

• small laceration of left cheek^[3]

In addition, that bruising and laceration is apparent in a series of photographs of the applicant^[4].

It is submitted that an appropriate award for this context is 2% of the scheme maximum ($1,500.00).  I accept that submission and accordingly I award $1,500.00 pursuant to Item 1.

2. Item 8 – facial fracture (severe) – 20%-30%

The statement of Dr Murphy indicates that a CT of the facial bones revealed “tripod type fracture of the left face involving a depressed fracture of the left zygoma [cheekbone], the anterior and posterior walls of the maxillary sinus, the orbital floor [eye socket] and the infraorbital foramen”.

It is submitted that having regard to the extent of the fractures (a substantial part of the left side of the applicant’s face), the fact that surgical intervention was required, the effect on the applicant’s employment (the applicant had to change jobs because his dusty working environment caused his eye to weep constantly)^[5], and the resulting nerve damage,^[6] an award should be made at the middle of the severe range for facial fracture, namely 25% of the scheme maximum.  In my view this is an appropriate submission and accordingly I award 25% of the scheme maximum ($18,750.00) pursuant to Item 8.

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

The applicant was examined by Dr Christine Richardson, psychologist, on 23 February 2010 and prepared a report dated 4 April 2010^[7].  Dr Richardson diagnosed the applicant as suffering from post-traumatic stress disorder (PTSD), noting that the applicant’s “profile is a classic post-traumatic presentation and it is apparent that [the applicant] experiences distress associated with PTSD”^[8].  Dr Richardson stated that the applicant’s PTSD “appears to be in the moderate range”^[9].  Dr Richardson notes that the applicant’s “relationship broke down as a result of changes in his behaviours and attitudes which [the applicant] reports are a direct result of his response to the incident in March 2008”^[10].  Dr Richardson noted further that the relevant events had “had a profound effect on [the applicant] and he should attend counselling to assist him gain some control over his distress.” Dr Richardson recommended 24 sessions with an appropriately qualified therapist to assist him “gain some control over his distress and help him maintain equilibrium in his daily activities” for which the relevant Australian Psychological Society recommended fee for a one hour session with a psychologist is currently $260.00^[11].  

I consider that an award at the middle of the moderate range is appropriate, and accordingly, I award 20% of the scheme maximum ($15,000.00) pursuant to Item 32.

Contribution

7. [7]
   It is clear that the applicant had consumed alcohol which apparently affected his driving and may have been a factor in the applicant and the respondent stopping their cars at the service station^[12].  However, once the vehicles were stopped, it appears that four separate witnesses saw and heard an argument but did not see the applicant throw any punches^[13].

8. [8]
   In these circumstances, Ms Cappellano submits that there should be no reduction of the award on the basis that the applicant’s behaviour has not directly or indirectly contributed to the injury. Ms Cappellano relies on the decision in Paterson v Chand & Chand [2008] QDC 214 as an example of a case in which the applicant armed himself with a baseball bat and was swinging it at the first respondent at the commencement of the confrontation in which the applicant was injured, but the applicant’s award was not reduced. 

9. [9]
   I accept Ms Cappellano’s submissions, and accordingly, I do not propose to reduce the award to the applicant pursuant to COVA s.25(7).

Conclusion

10. [10]
    I order that the respondent James Yeng Thao pay the applicant Marian Krnic the sum of $35,250.00.