Hines v Rauhina[2010] QDC 299

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld) (the COVA) for physical and psychological injuries sustained as a result of the offence of dangerous operation of a motor vehicle causing grievous bodily harm, of which the respondent was convicted on his plea of guilty before his Honour Senior-Judge Trafford-Walker in the District Court at Brisbane on 10 September 2009.  The respondent was sentenced to four years imprisonment for the offence, suspended after serving two and a half years, with an operational period of five years.

2. [2]
   The COVA was repealed by section 149 of the Victims of Crime Assistance Act 2009 (Qld) (the VCAA) which commenced on 1 December 2009. The transitional provision in section 167 requires this criminal compensation application to be determined in accordance with the COVA, as the application was made on 25 November 2009.  Consequently, any assessment of compensation is to be made under the relevant provisions of the COVA. 

3. [3]
   There was no appearance by the respondent, and after several attempts, service was effected. I am satisfied he was served in accordance with rule 110(c) of the Uniform Civil Procedure Rules 1999 (Qld) by service on the person in charge of the prison in which he is imprisoned.  I am therefore satisfied he is aware of the application and all relevant material relied upon to support it.  I therefore proceed in his absence.

Circumstances of the offence

4. [4]
   The respondent was convicted on his own plea of guilty of one count of dangerous operation of a motor vehicle causing grievous bodily harm. While the respondent was not the driver of the car, he was a passenger in the car and his Honour found that he was a party to the dangerous operation offence.^[1]  It was on this basis that he pleaded guilty and was convicted of the offence, of which the applicant was the victim.  On the same date the respondent also pleaded guilty to one count of assault occasioning bodily harm, one count of assault occasioning bodily harm as a party, one count of affray and one count of perjury.^[2]  However, these counts were not offences against the applicant and as such are not relevant to any award of compensation.  Further, the application is only bought in relation to the charge of dangerous operation of a motor vehicle causing grievous bodily harm.

5. [5]
   The offending behaviour took place on 25 February 2007. On this day the applicant was riding a motorcycle with other riders near Bribie Island.  The respondent told Dr Wallace, whose medical report is in evidence before me, he had been at a social function with other motorcycle riders.^[3]  The other motorcyclists included members of the Bandidos.^[4]  Although he told Dr Alcorn, who has given a psychiatric report, that his involvement was to “hang around” club houses such as the Bandidos, he denied wearing their colours.^[5]  He told Dr Wallace that he noticed a car coming towards him in an attempt to knock him from his bike.  He veered away, losing control of the bike and went through a gully with the bike on top of his left leg.^[6] 

6. [6]
   In a “Statement of Plaintiff’s Loss and Damage”^[7] it is said that a car pulled up about 20 metres in front of the applicant and in order to avoid hitting the car, or oncoming traffic, the applicant was forced to manoeuvre his bike to the left of the car and into a gully on the side of the road.  The applicant rode the bike in the gully for about 40 metres and tried to drive back out of the gully, but the car forced the applicant back down.  At this point the applicant lost control of the bike and crashed into the gully.  The bike ended up falling on him during the accident.

7. [7]
   Subsequent to this accident the applicant was assaulted with bats by several people, however, that aspect of the incident does not form part of the criminal compensation application.^[8]  Therefore, it is necessary to ensure the injuries sustained by the applicant, and that form part of this application, were actually caused by the respondent when the car forced the applicant off the road.

 Injuries and Medical Reports

8. [8]
   The applicant seeks compensation for physical and psychological injuries sustained as a result of the offence committed against him by the respondent.

Physical injuries

9. [9]
   The applicant sustained a fractured ankle during the incident. He claims that this was caused as a result of the offence committed by the respondent. He was taken to Caboolture Hospital immediately following the accident, and then transferred to Redcliffe Hospital, where he underwent surgery for a fracture of the left lateral malleolus on 26 February 2007.  The surgical procedure carried out was an open reduction and internal fixation of the left ankle.  The applicant remained in hospital until 1 March 2007.  He was released with his ankle in plaster.  He was mobilised in a wheelchair for three weeks afterwards and was then on crutches.  The fracture remained non-weight bearing for about six weeks.  He required four months off work after the injury, and did not start back at work in a full-time capacity until 5 months after the injury was sustained.  Two medical reports are provided in relation to the applicant’s ankle injury.  On the basis of these reports the applicant submits the ankle injury is severe and the appropriate level of compensation is at 15% of the scheme maximum.

10. [10]
    Dr Wallace, an orthopaedic surgeon, examined the applicant on 10 April 2008 and provided a report in relation to his ankle injury. Dr Wallace stated that the applicant advised him he had no past history of injuries to this ankle.^[9]  The applicant complained of ongoing aching in the left ankle and occasional swelling.^[10]  On examination Dr Wallace found the applicant had a 1.5cm wasting of the left calf when compared to the right, a healed surgical wound over the left distal fibula which was tender to palpate, and a mild restriction of ankle movement and subtular movement.  He did not believe the applicant required further treatment.^[11]  Dr Wallace was satisfied the injury had been sustained in the motorcycle accident as described.^[12]

11. [11]
    Dr Wallace also found that the applicant may require removal of the internal fixture at some stage in the future and that he was at an increased risk of developing osteoarthritic changes in his left ankle over time. Dr Wallace placed the increased risk in the vicinity of a 20-25% risk.^[13]  Using the American Medical Association Guides to the Evaluation of Permanent Impairments, Fifth Edition (“the AMA Guide”), he assessed the applicant as suffering from 4% whole person impairment.^[14]

12. [12]
    Subsequent to the report of Dr Wallace being obtained, Dr Halliday, another orthopaedic surgeon, examined the applicant and provided a further report. This examination occurred on 25 August 2008 and the report was prepared on the same date. Unfortunately the report that has been filed and relied upon in this application is missing every second page. The assessment of compensation has been carried out based on the pages of the report that were filed by the applicant.^[15]  In his report Dr Halliday states that the applicant “suffered a fractured ankle as he crashed…His ankle fracture is consistent with the accident he described.”^[16]  This is consistent with the view of Dr Wallace and provides sufficient evidence that the ankle injury sustained by the applicant was as a result of the respondents’ offence against him, and not the subsequent assault.

13. [13]
    Dr Halliday found that the applicant had some ongoing symptoms related to his ankle injury in the form of pain, stiffness and limitation of physical activity; however, he stated that no further treatment was required. On examination of the applicant’s ankle Dr Halliday found it displayed a non-tender, 9cm surgical scar on the lateral aspect of the left ankle. There was a mild restriction in the applicant’s range of motion; however no calf wasting of the left leg was present.^[17]  Dr Halliday assesses the whole person impairment of the applicant at 2% according to the AMA Guide.^[18]  The applicant’s condition is described as stable and stationary.^[19]  This assessment does differ somewhat from that of Dr Wallace, who found a 1.5cm wasting and more serious symptoms, including an assessment of 4% whole person impairment.  This is likely explained by the fact that Dr Halliday’s examination was conducted over 4 months later than Dr Wallace’s and the applicant’s injury may have healed more completely in this time. 

14. [14]
    No submissions were advanced in the written or oral submissions for an award of compensation for the bruising and abrasions that were allegedly sustained by the applicant during the incident. This may be because of the difficulty in determining which offences the bruising and abrasions resulted from, given the applicant was the victim of an assault immediately after the respondent’s offence against him. Accordingly, no award of compensation will be made for those injuries.

Psychological injuries

15. [15]
    The applicant seeks compensation for moderate mental or nervous shock sustained as a result of the offence committed by the respondent, to be assessed at 15% of the scheme maximum. Two reports are provided in relation to the applicant’s psychological injuries, one by Mr Stoker, a psychologist and one by Dr Alcorn, a psychiatrist. According to the latter report, the applicant denied any past psychiatric history;^[20] and since the incident, he had not received any psychological or psychiatric counselling or medication.^[21]  

16. [16]
    Mr Stoker assessed the psychological state of the applicant on 20 February 2008 and outlines his results in a report dated 4 March 2008. The assessment included an interview with the applicant and selected psychological tests.^[22]  In the report Mr Stoker outlines some of the problems the applicant has suffered since the offence, including in relation to his ankle injury.  He notes that the applicant concedes he has been drinking more heavily since the incident,^[23] avoids riding his motorcycle, is more anxious at the thought of riding it, and has generally become more introverted since then.^[24]  Mr Stoker notes the applicant has always suffered from sleeping problems, but the offence has exacerbated these problems, and has made him more suspicious of others and fearful of another assault.^[25]

17. [17]
    In the opinion of Mr Stoker, as a consequence of the road-related incident, the applicant is suffering from an Adjustment Disorder with Anxious Mood [DSM-IV].^[26]  In addition, the applicant suffers from anxiety which is secondary to ongoing pain, physical limitations, and other difficulties, he has developed phobic qualities regarding riding his motorcycle and medicates himself with the use of alcohol, such that he has developed an alcohol abuse disorder [DSM-IV].^[27]  In his opinion, the applicant would benefit from approximately twenty sessions of psychological counselling over the next twelve months to help improve his emotional functioning.   He outlines that ten of these sessions would relate to the motor vehicle accident component, and the other ten sessions would address the trauma of the assault that occurred subsequently.^[28]

18. [18]
    In relation to the assault component of the incident, Mr Stoker also states the following:^[29]

“It is my opinion, that as a result of the assault component involved in the index incident, this man suffered a mild degree of mental and nervous shock.  His percentage psychological impairment is in the middle to upper level of the mild range.” 

19. [19]
    His final categorisation of the psychological injuries of the applicant is that he has suffered whole person impairment on the Psychiatric Impairment Rating Scale (PIRS) of 13%. However, he specifies that only 6% is due to the respondent’s offence against the applicant, and the other 7% he attributes to psychological difficulties as a result of the assault that followed this offence.^[30] 

20. [20]
    Dr Alcorn interviewed the applicant on 12 August 2008 and prepared a report dated 16 February 2009. An addendum report dated 2 February 2010 was also prepared by him and included in the material relied upon by the applicant. In the first report Dr Alcorn outlines the applicant’s history, including the history of the offence. Of note is a reference to numbness in the applicant’s left hand that was considered to be a result of cervical spine symptoms that began after the applicant returned to work. However, the report states that more recently the applicant has reported the symptoms as being the result of the offence. However, no submissions, oral or written have been made in relation to this point and the medical evidence is not conclusive on the cause of the injury, and there is a suggestion that these symptoms could be related to the applicant’s occupation as a concreter.^[31]

21. [21]
    Dr Alcorn notes the applicant had previously informed Mr Stoker of experiencing lower frustration tolerance, anxiety when riding his motorbike, lack of motivation regarding work, the aggravation of a long-term sleeping problem, increased alcohol consumption and fear of another assault. However, he says Mr Hines was much more settled at the evaluation he conducted, although still experiencing elevated alcohol use, sleep difficulties and caution when riding his motorbike.^[32] 

22. [22]
    In relation to the cause of the applicant’s injuries Dr Alcorn states:

“It is apparent from the subject’s account that the great burden of his symptoms arose from the assault upon him…In the assault the subject did feel that his life might be in danger and described himself as being the most frightened he had been in his life.  As a consequence of the assault (rather than the accident itself) the subject developed post traumatic stress symptoms, which probably fell short of that disorder.”^[33]

23. [23]
    Dr Alcorn also states that the applicant had used alcohol in excess prior to the accident and that the condition did not change as a result of the accident.^[34]  He goes on to conclude that the applicant “developed an Adjustment Disorder with Depressed Mood and Anxiety, largely as a result of the unprovoked attack upon him”^[35] and while his ongoing physical problems associated with his ankle have contributed to the disorder, it remained to be determined as to whether the ankle injury could be attributed to the traffic incident or the subsequent assault.  This is, as Dr Alcorn recognises, a matter for the court to determine.

24. [24]
    Ultimately, Dr Alcorn diagnosed the applicant as suffering from an adjustment disorder with depressed mood and anxiety (in partial remission) and alcohol abuse (provisional diagnosis only).^[36]  He assessed Mr Hines as suffering from 4% whole person impairment due to the adjustment disorder.^[37] In the opinion of Dr Alcorn, the assault upon Mr Hines contributed to approximately one third of the residual Adjustment Disorder with the rest being attributable to the motorcycle accident.^[38]  Although he also expresses that, “Of this 2-3% WPI is attributable to the index traffic accident.”^[39]

25. [25]
    In the addendum report Dr Alcorn clarifies the nature of the adjustment disorder, stating that it is:

“a psychiatric condition of relatively low validity in which a stressor or stressors are responsible for the development of disproportionate psychiatric symptoms and/or clinically significant functional impairment.”^[40]

26. [26]
    Dr Alcorn proceeds to explain that over time the cognitive and emotional factors associated with the applicant’s adjustment disorder had significantly shifted focus to the physical limitations related to the offences committed against the applicant on 25 February 2007. From this it seems he means that the applicant, over time, has suffered more psychiatric impairment from the effect of the physical limitations caused by his injuries. Consequently, he states that if the court determined that the orthopaedic evidence supports the cause of the ankle injury as being the assault, then all of the adjustment disorder would be attributable to that factor. However, if the ankle injury is determined to have been caused by the respondent’s offence of dangerous driving, then only 1-2% of the 4% impairment should be considered to be related to the assault.^[41]

27. [27]
    Based on the evidence provided by both Dr Wallace and Dr Halliday it seems clear they consider the ankle injury to be consistent with having been caused by the motorcycle accident, and not the subsequent assault. If this is the case, on the basis of the evidence, between 2-3% of the 4% whole person impairment diagnosed by Dr Alcorn would be compensable and 6% of the 13% whole person impairment diagnosed by Mr Stoker would be compensable, as this represents the percentages of mental or nervous shock attributable to the respondent’s conduct towards the applicant.

28. [28]
    Both reports completed by Dr Alcorn and Mr Stoker gave these ratings under the PIRS system for the purposes of the Civil Liability Regulation 2003 (Qld).  However, as is clear from the applicable principles for the assessment of compensation, which are set out below, s 22(3) of the COVA makes it plain that an award of criminal compensation is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled.  Therefore, such an award is no more intended to reflect compensation for liability under the Civil Liability Regulation 2003 (Qld), than it is intended to invoke the principles applicable to common law damages (s 25(8)(a) of the COVA).  Although I regard the PIRS scores as a relevant factor to be taken into account in assessing compensation under the COVA, they are not determinative.

29. [29]
    The correct approach for the court is to assess compensation on the basis of the nature and severity of any injury suffered by the applicant as a result of the offence committed against him by the respondent. This is to be done with reference to the maximum amount of compensation allowed in respect of that type of injury as listed in the compensation table of the COVA.

30. [30]
    This approach must also be taken with reference to the assessments made under the AMA Guide for the psychological injury suffered by the applicant.

The applicable principles

31. [31]
    The assessment of compensation is governed by Part 3 of the COVA.  Section 24 of the COVA provides for compensation in respect of convictions on indictment of a personal offence for injuries suffered by an applicant because of that offence.^[42]  A personal offence is an indictable offence committed against the person of someone.^[43]  An injury is a bodily injury, mental or nervous shock, pregnancy or an injury specified in the compensation table in Schedule 1 of the COVA, prescribed under a regulation.^[44]

32. [32]
    An award of criminal compensation under the COVA does not invoke the principles applicable to common law damages.^[45]  It is intended to help the applicant, not to reflect the compensation to which the applicant is otherwise entitled.^[46]  A compensation order cannot be made for an amount more than the prescribed scheme maximum, presently $75,000.^[47]

33. [33]
    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.^[48]  In deciding the amount of compensation to be paid for an injury specified under the Regulation, the Court is limited to making 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.^[49] 

34. [34]
    Section 22(4) of the COVA 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.^[50] 

35. [35]
    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.^[51] 

36. [36]
    Section 26 of the COVA, read in its entirety, aims to encourage only one criminal compensation order for one episode of injury without duplication.^[52]  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 COVA and Ward.^[53]  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.^[54]  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.^[55]

37. [37]
    Ultimately, the Court should ensure that there is compliance with the use of the methodology proscribed by section 25 of the COVA which is mandatory.^[56]

38. [38]
    Section 25(7) of the COVA provides that in deciding whether an amount should be ordered, or in deciding what amount should 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. 

39. [39]
    The issues of fact in this application must be decided on the balance of probabilities.^[57]             

Assessment of compensation

40. [40]
    I am satisfied on the balance of probabilities that the applicant suffered the physical and psychological injuries documented in the evidence as a result of the indictable offence of dangerous operation of a motor vehicle causing grievous bodily harm committed by the respondent on 25 February 2007. I am satisfied that those injuries are a fractured left ankle and mental or nervous shock. The question also arises as to whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded.^[58]  In this case the relevant factor which arises for consideration is the subsequent assault by several people with bats, which does not form part of the compensation application.

41. [41]
    Mr Green and Ms Willson, on behalf of the applicant, seek compensation under two items, as follows:^[59]      

Item 20 – Fractured ankle (severe) – 8%-25%

42. [42]
    Ms Willson, who advanced the oral argument on behalf of the applicant, submits the seriousness of both the original injury to the ankle and the ongoing symptoms and effects the applicant has suffered, places this injury within Item 20 of Schedule 1 of the COVA.^[60]  The case of Herron v Herron^[61] was relied upon to support this submission. In that case the applicant suffered a severe ankle fracture as a result of the offence of grievous bodily harm inflicted upon her by the respondent; however, medical evidence placed the whole person impairment of Ms Herron at 20%.  While Ms Willson conceded the 20% whole person impairment was far higher than the 4% impairment Dr Wallace found the applicant suffered in this case, she submitted the impact the injury had on this particular applicant was still such that an award of 15% of the scheme maximum could be justified. 

43. [43]
    To support this submission Ms Willson referred to the four months the applicant took off work, his reliance on a wheelchair and crutches, his restricted movement and calf wasting as well as the increased risk, found by Dr Wallace to be between 20-25%, of developing osteoarthritis in his injured ankle.^[62]  Ms Willson also relied upon the severity of the surgery that was required to treat the injury, that being an open reduction with internal fixation.

44. [44]
    As I have observed, the correct approach to assessing compensation under the COVA is to determine the nature and severity of the injury, in this case the ankle fracture, with reference to the scheme maximum under the compensation table; and on the basis that the maximum amount listed is reserved for the most serious cases.

45. [45]
    The 15% of the scheme maximum requested by the applicant falls at the midway point for a severe ankle injury under Item 20. When recourse is had to Herron v Herron, it does not appear that the applicant’s injury falls at the midway point of a severe ankle injury.  Dearden DCJ described the injury suffered by Ms Herron as having ‘catastrophic consequences’ including surgery, the immobilising of the foot for three months post surgery, the use of crutches for a year, further surgery to remove pins, the fact the applicant was off work for 1.5 years and was unable to work in the same capacity as she did prior to the injury, the potential requirement of further surgery and a whole person impairment of 20%.  In addition, osteoarthritis was present, there was a significant risk of long-term arthritis and she had only gradually returned to about 70% of her pre-injury work level.  His Honour found those consequences justified making an award ‘towards the upper end of the applicable range’.^[63]  Accordingly the applicant was awarded 20% of the scheme maximum.

46. [46]
    In comparison the injury suffered by Mr Hines does not appear to be as severe as that suffered by Ms Herron, particularly when recourse is had to the dramatic difference in their assessments of whole person impairment, with Dr Wallace and Dr Halliday assessing it at 4% and 2% respectively.

47. [47]
    I regard Dr Halliday’s assessment which was made over four months after that of Dr Wallace, as consistent with an improvement of the injury over that time.

48. [48]
    In Hill v Dizo^[64] it was held that when the COVA requires a decision about what item in Schedule 1 of the compensation table applies, concern must be directed at what the nature of the “injury” is that was suffered “because of the offence”; and that can only be the injury that is originally suffered.  Consequently, where a later diagnosis is that the injury has moderated, this is merely something that is taken into account in assessing, pursuant to s 22(4) of the COVA, where in the scaling the particular case falls. 

49. [49]
    Adopting this approach in the present case, and having regard to the AMA Guide assessments of 4% impairment moderating to 2% impairment over a period of 18 months since the injury was sustained as a relevant factor, but not a determinative one, and comparing the applicant’s injury with that of Ms Herron, I assess compensation for a severe fractured ankle at 10% of the scheme maximum, namely $7,500.

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

50. [50]
    In RMC v NAC^[65]  Byrne SJA took the view that mental or nervous shock within the COVA is confined to a recognisable psychiatric illness or disorder.^[66]  I find that an adjustment disorder with depressed mood and anxiety is a recognisable psychiatric illness or disorder and consequently, constitutes mental or nervous shock as compensable under the COVA.  In coming to this conclusion I have taken into account that such a disorder is a diagnosis which is classified under Axis 1 of DSM-IV.  It is a diagnosis which is reached by Dr Alcorn and Mr Stoker.  I do not rely on Mr Stoker’s diagnosis of a DSM-IV Alcohol Abuse disorder, in light of Dr Alcorn’s evidence that it is unclear if Mr Hines’ alcohol usage levels have permanently changed as a result of the incident, with some collateral material indicating excessive pre-accident consumption. 

51. [51]
    Section 25(7) of the COVA provides:

“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 of the applicant that directly or indirectly contributed to the injury.”

In SAY v AZ; ex parte Attorney-General (Qld)^[67]Holmes JA (with whom Jones and Mullins JJ agreed) said:

“Section 25(7) as it seems to me, deals with both causation and quantification.  In the first instance the court has to decide “whether, taking all relevant factors into account, the offence has materially contributed to the injury.”  Assuming that it has, there remains the question: “what amount…should be ordered to be paid” for that injury.  Again the court must have regard to everything relevant.”

52. [52]
    With reference to the issue of causation, consistent with what her Honour said in that paragraph, she held at [19]:

“in order to render an injury compensable, it is sufficient to show that the offending behaviour materially contributed to it.”

53. [53]
    Therefore, to entitle the applicant to compensation for mental or nervous shock on the basis of the adjustment disorder it is necessary for the court to be satisfied on the balance of probabilities that the offence of dangerous operation causing grievous bodily harm materially contributed to this injury.

54. [54]
    This issue arises because of the subsequent assault on the applicant by several persons with bats, which does not form part of the compensation application. For example, Dr Alcorn’s addendum report highlights that the causation or onset of the adjustment disorder arises from a combination of factors, including this assault. He observes that over the course of time the cognitive and emotional factors associated with the adjustment disorder had significantly shifted focus to the applicant’s related physical limitations arising from the events of 25 February 2007. Therefore, he says if the court finds that his physical symptoms were the result of the post-accident assault, all permanent impairment related to the adjustment disorder would be attributable to this factor.

55. [55]
    In this case I have found that his fractured ankle was caused as a result of the respondent’s offence against him, and not the subsequent assault. Therefore, not all permanent impairment relating to the adjustment disorder is attributable to the post-accident assault.

56. [56]
    I have already held that I am satisfied on the balance of probabilities that the applicant suffered his psychological injury documented in the evidence as a result of the indictable offence committed against him by the respondent, and which caused him grievous bodily harm. This is because I am satisfied on the balance of probabilities that this offence materially contributed to this injury. I have come to this conclusion in circumstances where Mr Stoker and Dr Alcorn have opined that a substantial proportion of the applicant’s psychiatric impairment is due to this offence. In the case of Mr Stoker he considers that 6% of a 13% PIRS rating is due to this. Dr Alcorn assesses that the assault upon the applicant contributed to approximately one third of a 4% whole person impairment, or put another way, 2-3% of the whole person impairment is attributable to the offence.

57. [57]
    In quantifying the psychological injury suffered by the applicant as a result of the dangerous operation of the motor vehicle causing him grievous bodily harm I give most weight to the opinion of Dr Alcorn. He is a psychiatrist, and took into account the psychological report of Mr Stoker in coming to his conclusions. He also interviewed the applicant six months after Mr Stoker, and therefore is in a better position to consider the progress of his symptoms.

58. [58]
    It is Dr Alcorn’s assessment that the adjustment disorder suffered by the applicant was in partial remission. It is again necessary to approach this matter by considering the nature and severity of the injury originally suffered, with the remission being taken into account in assessing where in the scaling the particular case falls.

59. [59]
    It is relevant that although in partial remission, the adjustment disorder with associated lower frustration tolerance, anxiety when riding his motorbike, lack of motivation regarding work, aggravation of a long-term sleeping problem and generally becoming more introverted was still affecting the applicant 18 months after the incident.^[68]  I regard the anxiety associated with riding his bike to be of particular significance, because this was obviously an activity which had previously been a source of pleasure to him.  Further, as Dr Alcorn states, the cognitive and emotional factors associated with the adjustment disorder had significantly shifted to his physical limitations which I have found were caused by the respondent’s offence.

60. [60]
    I was referred to the case of Shepard v Moefaaua,^[69] in which the applicant, as a result of being unlawfully wounded through an attack to his head with a beer glass, suffered a post-traumatic stress disorder for about two months after the incident.  While the symptoms had settled, Dearden DCJ considered that these symptoms, taken together with the applicant’s indication that he felt threatened when he saw persons of the same racial group as the respondent and had a residual fear of crowded pubs, justified an award at the upper end of Item 31 (mental or nervous shock (minor)), namely 10%.

61. [61]
    In light of Dr Alcorn’s conclusions I consider that notwithstanding his PIRS rating of the applicant manifesting 4% whole person impairment, this applicant has suffered a more serious psychological injury than the applicant in that case. Consequently, in all the circumstances I consider that an award of 15% of the scheme maximum, namely $11,250 is appropriate. This is in accordance with the submission on behalf of the applicant.

Contribution

62. [62]
    However, in deciding what amount is payable for these injuries, I am required under s 25(7) of the COVA to consider whether there are other relevant factors to which regard must be had, and if so, whether they should operate to reduce the amount which might otherwise be awarded. These factors include the applicant’s behaviour, and offences committed by other persons against the applicant. Therefore, it is necessary to consider the contribution, if any, to his injuries of the subsequent assault on him by several people with bats.

63. [63]
    In accordance with R v Jones, ex parte Zaicov,^[70] I must have regard to s 25(7) in assessing the percentage allowed for each injury.

64. [64]
    It is also necessary for me to proceed on the basis on which the offender was sentenced.^[71]  I must take a view of the evidence consistent with the view that was taken at sentencing, as to do otherwise “would result in unfairness and would be incongruous”.^[72]

65. [65]
    In the sentencing remarks of the respondent his Honour Senior-Judge Trafford Walker refers to the behaviour of the respondent as being part of “a plan, not well thought out of course, but a plan to get at the Bandidos.”^[73]  His Honour then states that a member of the respondent’s motorcycle gang had suffered injuries and problems, but that this did not give the respondent a legitimate reason for taking the law into his own hands; and “It was for that reason that you and the others decided to attack the Bandidos.  Well, of course we can’t run our society on that basis and such conduct must be deterred.”^[74]

66. [66]
    While the remarks of his Honour indicate that the attacks against Mr Hines and his fellow riders that day were part of a plan to seek some sort of revenge on members of the Bandidos motorcycle club, no evidence has been placed before the court that the applicant himself had been involved in any alleged conduct against a member of the respondent’s motorcycle club. Further, as indicated, the applicant claims to be a person who hung around the Bandidos club house, but did not wear their colours. Also the incident occurred after he attended a social function with the group. There is no evidence he had previous dealings with the respondent, or did anything that could be considered to be any kind of provocation, nor can the circumstances surrounding the offence in any way be construed to involve prior conduct of the applicant which might somehow have been contributory to what happened to him. Accordingly, there is no evidence the applicant contributed, either directly or indirectly, to the injuries caused to him by the respondent.

67. [67]
    Therefore, I conclude there was nothing in the applicant’s actions which requires any further allowance to be made or a lower percentage of compensation to be fixed on this basis for his physical or psychological injuries as a consequence of s 25(7) of the COVA.

68. [68]
    However, in relation to the psychological injury it is necessary to take into account the assaults committed on him by others after the respondent committed the offence of dangerous operation causing grievous bodily harm. The respondent has not been charged with any offence of assault against the applicant.

69. [69]
    Both Dr Alcorn and Mr Stoker have found that the applicant’s adjustment disorder can be contributed to both the actions of the respondent and the persons who committed the subsequent assaults.

70. [70]
    Mr Stoker found that the whole person impairment of 13% was to be reduced to 6% (by approximately 50%) once the assault was taken into account. On the other hand, Dr Alcorn specified in his initial report that the assault contributed approximately one-third of the adjustment disorder. In terms of the PIRS ratings he assessed 2-3% of the 4% whole person impairment was due to the “index traffic accident” (therefore, 25%-50% was due to the assaults). In his addendum report he estimated again that a maximum of 1-2% of the whole person impairment was due to the assaults. These opinions must be taken into account in quantifying the compensation to be awarded to the applicant. No submissions were made on his behalf concerning this issue.

71. [71]
    In SAY v AZ; ex parte Attorney-General (Qld)^[75] Homes JA said at [24]:

“Given that the Act's scheme is to require an offender to compensate his or her victim, it would be reasonable to suppose that contributing causes, entirely independent of the respondent, would be given considerably more weight than those merely reflecting part of a continuum of offending…The basis on which any reduction in compensation is made must, of course, be clearly identified.”^[76]

72. [72]
    In the present case although the respondent was not directly responsible for the subsequent assaults on the respondent which contributed to his psychological injuries, it can not be said that these assaults were entirely independent of him.

73. [73]
    As I have recognised Trafford-Walker SJ DCJ sentenced the respondent on the basis that his offence of dangerous operation of a motor vehicle causing grievous bodily harm could not be looked at in isolation because it was part of a plan to get at the Bandidos. As his Honour said:

“you and others decided to attack the Bandidos.”

 Like the others who assaulted Mr Hines, the respondent “used a bat” according to the sentencing remarks.  The respondent was convicted of one offence of assault occasioning bodily harm whilst armed and one offence of assault occasioning bodily harm, of which the sentencing Judge said, “he was convicted as a party”.

74. [74]
    Therefore the subsequent assault by the others on the applicant was part of a continuum of offending in which the respondent was involved.

75. [75]
    In these circumstances whilst I consider that some reduction in the award of compensation is required to reflect the contribution of the subsequent assaults to his psychological injury, it should be limited to allowing a deduction of 3% of the 15% awarded, which is in the vicinity of the bottom of Dr Alcorn’s range of a maximum of 1% of the 4% whole person impairment being attributed to the assault.

76. [76]
    I therefore assess compensation under item 32 for mental or nervous shock (moderate) as 12% of the scheme maximum, namely $9,000.

Conclusion

77. [77]
    Accordingly, having regard to the medical and other evidence discussed above and the applicable principles governing the award of compensation in these applications, compensation for the applicant is assessed as follows:

Item 20 – Fractured ankle (severe)

The applicant is awarded 10% of the scheme maximum, namely $7,500.

Item 32 – Mental or nervous shock (moderate)

The applicant is awarded 12% of the scheme maximum, namely $9,000.

Therefore, the total assessment is 22% of the scheme maximum, namely $16,500.

Order

78. [78]
    The respondent Peter Douglas Rauhina is to pay the applicant Steven Hines $16,500 by way of compensation pursuant to section 24 of the Criminal Offence Victims Act 1995 (Qld).