Mayne v Sheedy[2010] QDC 286

[2010] QDC 286

DISTRICT COURT

CIVIL JURISDICTION

JUDGE IRWIN

No 1 of 2010

BRISBANE

DATE 25/06/2010

ORDER

HIS HONOUR:  The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Queensland) (the Act) for the physical injuries caused by the attack of the respondent on 15 August 2007.

The Act was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the 2009 Act), which commenced on 1 December 2009.

The transitional provision in section 155(1)(a) of the 2009 Act requires the application to be determined in accordance with the Act as it was made on 27 January 2010.  This was before the end of two months after the commencement as required by section 155(2)(b) it being the earlier of the dates required in that subsection.

For completeness, I note that on 28 May 2010 I gave leave for this application to be amended so that it referred to the applicant's conviction for grievous bodily harm and not to assault occasioning bodily harm.  I regard this as an amendment to remedy a technical slip to the framing of the application rather than as affecting the substance of the application.  It would have been abundantly clear to the respondent that the reference to injuries sustained as a result of the offence which led to the respondent's conviction on 11 September 2009 related to his conviction for grievous bodily harm on that date, however that offence was described.

On 11 September 2009 the respondent pleaded guilty to one count of grievous bodily harm upon the applicant.  He was sentenced on that date to two years' imprisonment with an immediate release on parole.

As established by the affidavit of Mr Phillips sworn on 28 April 2010 the originating application and the affidavits relied upon by the applicant were personally served on the respondent.  Subsequently, in accordance with another order that I made on 28 May 2010, the applicant's solicitor has effected service of a letter on the respondent advising him of the amendment to the application and also that I had ordered the application to be transferred from the Dalby Registry, where it was originally to be heard, to the Brisbane District Court Registry.  This is established by a further affidavit by Mr Phillips sworn on 4 June 2010.

The respondent did not appear in Dalby on 28 May 2010 and has not appeared today.  Accordingly, I proceed to hear the application in his absence.

Circumstances of the Offence:

The offence occurred in the employer provided accommodation in Dalby where the applicant and respondent were living at the time.  As Mr Bailey, counsel for the applicant, accurately put it they had been engaged in some serious drinking together at an hotel for most of the afternoon and continued this at the shared accommodation.

When I sentenced the respondent, I described them both as "heavily intoxicated."  They were each sitting at a table and were jovial, happy drunks until shortly before the incident happened.  At some stage during the evening the respondent's girlfriend arrived there.  The atmosphere soured after the applicant made, as I found at a contested hearing to determine the factual basis of the sentence, a derogatory, abusive and unseemly remark towards the girlfriend in the respondent's presence.

The respondent then reacted instinctively by delivering two punches in quick succession to the right-hand side of the applicant's face.  This involved the respondent taking two quick steps around the table to reach the applicant who was still sitting rolling a cigarette at the time of the attack upon him.  I therefore proceeded to sentence the respondent on the basis the assault was not gratuitous and unprovoked but was an excessive, disproportionate response to the verbal provocation offered to him by the applicant.  This was the basis on which the respondent pleaded guilty.

Injuries and Medical Reports:

The applicant felt intense pain and ringing in his right ear when the first punch landed.  The second blow also caused him intense pain and also caused his right eye to swell up.  The swollen eye eventually closed completely.  He was also bleeding from his nose and had to hold a towel against it until it stopped bleeding.

The next day he had a massive headache and did not go to work.  He also found on that day that his jaw wouldn't open properly and was making a clicking noise.  The whole right side of his face was swollen and there was a constant ringing noise in his right ear.  It took a week for his right eye to open and it was still swollen for another ten days.  It remained red for a further ten days.

For the following period of about two weeks he placed himself on a soft food diet because of his inability to chew.  He was also numb around the right eye and cheek and the area surrounding it.  There was a noticeable difference in his cheekbone structure.  His teeth were out of alignment.

He eventually presented himself to an hospital where on 7 September 2007 he underwent surgery for a fractured right zygoma and orbital rim.  This involved elevation of the zygoma, orbital rim exploration and plating.  That is, he had a metal plate screwed to his eye socket to hold it together.  Dr Huston, the maxillofacial surgeon responsible, describes this as follows:  "He had a tripartite fracture of his right zygoma.  This had produced a displacement of his cheekbone such that there was an orbital rim step defect with infraorbital nerve compression producing facial amnesia...He had no disturbance to his visual acuity or vision.  In other words, he was not seeing double.  There was no diplopia so he had no eye signs or symptoms as a result of this injury."

Dr Huston also opines that the numbness would have transformed into chronic neuralgia, the pain of which is almost impossible to live with.  In addition, his face would have had a depressed appearance.  Thus the charge of grievous bodily harm to which the respondent pleaded guilty.

In his victim impact statement of 15 February 2009 the applicant said that following the operation half of the right side of his face was completely numb and remained that way for three months.  His right eye was completely red until the end of November.  He said that he had many follow up appointments to remove stitches, to have eyesight checks, CAT scan and hearing tests.  Although I note there is no evidence of the results of the hearing tests.

Eighteen months after the incident he still suffered when he went outside without sunglasses.  I understand this is because of glare.  As well, he has scars on his face from the surgery.  He also has the continual ringing in his right ear.  He continued to have headaches after the operation for some period.

For completeness, I observe that the respondent had been unable to work for two days following the assault and had another two weeks off work when he was released from hospital.  He had to take further time off work for the removal of the stitches and other checkups that I have mentioned.  He had no income during the time that he was unable to work.

At the time he gave his statement on 7 May 2008 about nine months after the incident, he still had numbness and tingling near his right temple.

No more up-to-date medical reports have been obtained for the purposes of this application.  I proceed to consider it on the basis of the applicable evidence about his injuries that I have described and what was said by Dr Huston.

The Applicable Principles:

The assessment of compensation is governed by Part 3 of the Act.  Section 24 of the Act provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence: JMRoboSRR v Hornsby [2009] QDC 147 per Dearden DCJ at [6].  A personal offence is an indictable offence committed against the person of someone:  Section 21 of the Act.  An injury is bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule 1 of the Act prescribed under a regulation: Section 20 of the Act.

An award of criminal compensation under the Act does not invoke the principles applicable to common law damages: Section 25(8)(a) of the Act.  It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled:  Section 22(3) of the Act.  A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000:  See section 25(2) of the Act and the Criminal Offence Victims Regulation 1995 (QLD) (the Regulation) section 2; See also Riddle v Coffey (2002) 133 ACrimR 220; [2002] QCA 337 at [12].

An award for compensation must be made by reference to the compensation table which lists 36 different types of injury, giving each a percentage or range of percentages of the scheme maximum: section 25(3)-(4) of the Act.  In deciding the amount of compensation to be paid for an injury specified under the Regulation, the Court is limited to make an order for the prescribed amount.  If the injury does not come within those itemised in the compensation table or specified under a Regulation, then the Court must decide the amount of compensation by reference to the amounts paid for comparable items in the compensation table: Section 25(6) of the Act.

Section 22(4) of the Act requires compensation under the section to be calculated by assessing the injury as or similar to an item in the compensation table and placing it appropriately within the relevant range of the percentages of the scheme maximum set out in the table:  Riddle v Coffey (2002) 133 ACrimR 220 at 223; [2002] QCA 337 at [15] applying R v Ward; ex parte Dooley [2001] 2 QdR 436 at 438, 440.

It follows that in such cases the amounts of compensation ordered are to be scaled within the ranges set out in the table on the basis that the maximum amount of compensation allowed in respect of each type of injury listed in the table is reserved for the most serious cases: R v Ward; ex parte Dooley [2001] 2 QdR 436 at 440.

Section 26 of the Act, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication: Riddle v Coffey at 224; and at [18]; JMRoboSRR v Hornsby at [6].  However, it does not discourage a Judge making a criminal compensation order from calculating and adding together the appropriate amount of compensation for a number of injuries arising from one episode by reference to the relevant items in the compensation table in the manner required by section 25(3) of the Act and Ward: Riddle v Coffey at 224; and at [18].  Accordingly, where it is practical to make separate assessments under each applicable item in the table, whilst at the same time avoiding duplication, that course should be adopted: Wren v Gaulai [2008] QCA 148 at [24]; Hornsby at [6].  However, 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 the differences between the ranges or maximum for each item: Wren at [29]; Hornsby at [6].

Ultimately, the Court should ensure that there is compliance with the use of the methodology prescribed by section 25 of the Act which is mandatory: Wren at [22]; Hornsby at [6].

Section 25[7] of the Act provides that in deciding whether an amount or what amount should be ordered to be paid for an injury, the Court must have regard to everything relevant, including, for example, any behaviour by the applicant that directly or indirectly contributed to the injury.  In Zaicov & McKenna v Jones [2001] QCA 42 Holmes J (with whom McMurdo P and Williams JA agreed) held at [33] that section 25(7) comes into operation at the time when the amounts to be paid for the respective injuries are to be assessed and not at a latter stage when the total amount payable under the order is being determined.  That is to say, it is in determining the percentage allowed for each injury that the court must have regard to relevant matters, including contribution.

The issues of fact on this application must be decided on the balance of probabilities: Section 30(2) of the Act.

The Applicant's Submissions:

In his written submissions Mr Bailey for the applicant submits that the applicant has suffered the following injuries and should be compensated on the following basis:

• Item 1 - bruising/lacerations etc (minor/moderate) - 3 per cent - $2,250.

• Item 8 - facial fracture (severe) - 25 per cent - $18,750.

• Item 27 - facial disfigurement or bodily scarring (minor/moderate) - 5 per cent - $3,750.
• Item 35 - loss of hearing (one ear) - 5 per cent - $3,750.

Therefore, an award is sought at 38 per cent of the scheme maximum which is $28,500 subject to any reduction to take into account any behaviour by the applicant that directly or indirectly contributed to the injury.

As Mr Bailey accepts my finding that the punches were an excessive contribution to provocation by the application would appear to enliven section 25(7) of the Act to potentially reduce the award.  However, he submits that if I take this view any such reduction should be modest and certainly no more than 20 per cent.

Assessment:

I'm satisfied on the balance of probabilities that the applicant suffered physical injuries as a result of the indictable offence of grievous bodily harm committed against his person by the respondent on 15 August 2007.  I am satisfied that those injuries involved swelling to the face, a facial fracture, facial disfigurement and an ongoing ringing in his right ear.

Item 1 - Bruising/Laceration etc (minor/moderate) - 1 per cent - 3 per cent:

Mr Bailey's submission is that the applicant is entitled to an award under item 1 for his bleeding nose and, inferentially, facial bruising.  However, there is no specific evidence of the nature and extent of any facial bruising.  It would be speculative to make an award for facial bruising on such an uncertain basis.  I consider the bleeding nose to be so transient as to not warrant an award either separately or globally with the facial swelling, which I will now address.

The swelling, which is a comparable item to bruising, is sufficiently documented to warrant consideration.  According to the applicant's evidence, he suffered swelling around his eye as an immediate result of the punches with the result that his right eye closed up and remained closed for a week.  It remained swollen for a further ten days.  In other words, that was facial swelling for between two - three weeks after the incident.  The eye remained red for a further ten days, according to his statement, and until the end of November, according to his victim impact statement.

I consider that the applicant is entitled to be compensated for the swelling and the associate affect on his eye, which remained closed for a period as a consequence.  While I find that it is an injury within item 1, I do not consider that it is the most serious case of such an injury for which the maximum of three per cent which is claimed is reserved.  I assess an award at two per cent of the scheme maximum for this item.  This is $1,500.

In accordance with Zaicov and McKenna v Jones, in assessing the percentage allowed for each injury I must have regard to section 25(7) of the Act.  This arises because of my finding that the applicant verbally provoked the attack by his derogatory, abusive and unseemly remarks towards the respondent's girlfriend.  Although the applicant maintains in his affidavit that the assault on him was unprovoked, the fact is that I made a finding to the contrary.  Put another way, I was not satisfied on the balance of probabilities by the prosecution after hearing and observing both the applicant and the respondent give evidence and be cross-examined that it was an unprovoked assault.  In this regard, section 132C of the Evidence Act 1977 (Qld) is relevant.

In Riddle v Coffey the Court of Appeal determined that in assessing criminal compensation the primary Judge is required to have regard to the factual basis on which the respondent was sentenced.  I approach the current assessment on this basis because I have determined it, as I have said, after hearing evidence on oath from both parties, who were the subject of cross-examination. 

Therefore, I find that the applicant's actions have contributed to his bodily injuries.  His verbal abuse of the respondent's girlfriend precipitated the respondent's excessive response resulting in the grievous bodily harm and the consequent injuries.  On the other hand, nothing warranted the respondent's excessive overreaction.

In determining the extent that I reduce the award due to this contribution, it is relevant that the respondent's provocation was verbal rather than physical and the respondent's disproportionate response was to physically attack the applicant while he was seated rolling a cigarette.

In these circumstances, I conclude that the appropriate reduction is three per cent.  However, given the percentage of the scheme maximum I have calculated for item 1 is less than this and is a low monetary amount, I do not consider it accords with commonsense in this case to make any reduction for this aspect of the award.  The swelling is, in any event, the outward manifestation of the underlying facial fracture.  The reasoning in Zaicov and McKenna v Jones at [41] leaves it open to conclude that there can be different reductions on the basis of different contributions to discrete bodily injuries.  Therefore, I consider that in this case the reduction should be limited to assessing the percentage allowed for the substantial injury involved in the underlying facial fracture.  It is in this manner that the effect of the applicant's contribution is properly assessed.

Therefore, I have ultimately decided not to reduce the assessment for item 1 on this basis.  Therefore, I assess an award at two per cent of the scheme maximum for item 1.  This is $1,500.

Item 8 - Facial Fracture (severe) - 20 per cent - 30 per cent:

I agree that this was a severe fracture.  It required surgery to insert a plate to hold the respondent's eye socket together.  The injury was associated with numbness which continued for three months after the operation.

Nine months after the incident the applicant reported still having numbness and tingling near his right temple.  I consider that this was associated with the facial fracture and I take it into account in assessing its severity.

Mr Bailey has submitted that I should make a separate award for facial disfigurement which the respondent has suffered through scarring to his face as a result of the surgery.  That submission was made in writing.  It is open to either separately assess the facial fracture and the disfigurement.  It is also open to regard it as part and parcel of the facial fracture: Zaicov and McKenna v Jones at [25].  Mr Bailey concedes in his oral argument that such a course is open to me in this case.  I consider it is appropriate to adopt the latter approach.

I consider that, when the disfigurement is in the form of scars to the respondent's face from surgery and they remained 18 months after the surgery at the time he gave his victim impact statement, this is sufficient to place the facial fracture towards the top of the range of seriousness.  Although in the absence of medical evidence as to the prognosis for the future, I regard it as speculative as to how long it will remain with the applicant who is still relatively young at 32 years of age.  It is nonetheless likely to remain visible for some further time into the future.

In these circumstances, I assess an award for the facial fracture, including as part and parcel of it the facial disfigurement, at 28 per cent of the scheme maximum.  This is $21,000.

For the reasons I have already given I reduce the award due to the applicant's contribution to his bodily injuries.  I reduce the award by three per cent consistently with what I have said.  Therefore, I assess an award for this item at 25 per cent of the scheme maximum.  This is $18,750.

Item 27 - Facial Disfigurement or Bodily Scarring - 2 per cent - 10 per cent (minor/moderate):

For the reasons I have given I have assessed the award for the facial fracture on the basis that the facial disfigurement is part and parcel of it.  Therefore, I do not assess it separately.

Item 35 - Loss of Hearing - (one ear) - 2 per cent - 20 per cent:

This claim for an award of compensation is based on the complaint of ongoing ringing in the applicant's right ear.  It is submitted this equates to a partial loss of full hearing function deserving of a modest award.

Mr Bailey suggests that I can be satisfied that some modest level of hearing loss is involved applying my experience of the world.  However, despite the obvious inconvenience involved, I nonetheless consider it entirely speculative in the absence of expert evidence as to whether this ringing is in fact associated with hearing loss and, if so, to what extent.  As I have observed, although the applicant refers to having hearing tests on follow up appointments with the hospital after the surgery, the results have not been placed in evidence.  If there have been any more recent tests, these have also not been placed in evidence.

In the absence of this expert evidence I am not satisfied on the balance of probabilities that a hearing loss has been established as a result of the attack by the respondent.  Even if there had been a hearing loss, in the absence of such evidence it is not possible for me to do otherwise than speculate as to the extent of such loss.  Accordingly, I make no award for this item.

Accordingly, having regard to the deduction I have made for the applicant's contribution to the facial fracture which I have taken into account in determining the percentage to be allowed for that injury, I assess compensation in the terms of the compensation table as follows:

• Item 1 - bruising/lacerations etc (minor/moderate) - 2 per cent - $1,500.

• Item 8 - facial fracture (severe) - 25 per cent - $18,750.

Therefore, the total assessment is $20,250.

I order the respondent to pay to the applicant the sum of $20,250 by way of compensation pursuant to section 24 of the Act for injuries sustained as a result of the offence of grievous bodily harm which led to the conviction of the respondent in the District Court at Dalby on 11 September 2009.