Knight v Bierton[2010] QDC 312

DISTRICT COURT OF QUEENSLAND

HIS HONOUR:  The applicant, Luke Shane Knight, seeks compensation arising out of an incident which occurred at the Greenbank RSL, Hillcrest, on 16 December 2007.

The respondent, Guy Johnathon Bierton, pleaded guilty before me at the Beenleigh District Court on 17 December 2008 to one count of grievous bodily harm.

The respondent was sentenced to three years' imprisonment, suspended after serving nine months' imprisonment, with an operative period of three and a-half years.

Facts:

The applicant was a patron at the Greenbank RSL, and was seated with a group of friends at 2.39 a.m. on Sunday 16 December 2007. The respondent and his father were also present at the Greenbank RSL at the same time, although the respondent and his group were unknown to the applicant and his group.

After an altercation erupted between a third person and a member of the respondent's group, the respondent's father engaged that third person. The respondent, who was in close proximity, raised his right arm and threw a glass at the third person. The third person moved out of the path of the glass, and the glass then struck the applicant, who was seated nearby with his group, on his right eye. The glass shattered, caused lacerations to the applicant's face and eye, and four or five glass fragments lodged in the applicant's eye.

The applicant was taken by ambulance to the Princess Alexandra Hospital, where he underwent immediate surgery to his right eye and the area surrounding the right eye, which had been severely lacerated (see sentence Exhibit 1).

Injuries: 

As a result of the assault, [the applicant] sustained the following injuries: 

• A right penetrating eye injury with prolapsed uveal tissue and total retinal detachment;

• Right lower eyelid avulsion;

• Small laceration involving the left lower eyelid; and

• Left lateral subconjunctival haemorrhage.

[The applicant] was taken to theatre on the 16th of December 2007 where the following procedures were done:

• Removal of glass fragments beneath the right globe;

• Repair of right penetrating eye injury with prolapsed uveal tissue;

• Repair of right lower eyelid avulsion.

The applicant has been left almost blind in his right eye. Dr Lily Ooi, the ophthalmology registrar at the Princess Alexandra Hospital, noted 'Upon examination on the 22nd of February 2008, his right eye had persistent poor vision to only perceiving gross movements only. This is due to irreparable retinal detachment.'

Dr Vu, an ocular plastic surgeon of the Eye Clinic, has also stated that as the eye will continue to shrink, the complainant will require a prosthetic eye within two years. (See sentence Exhibit 1).

Photographs of the injuries tendered on the sentence (sentence Exhibit 4) graphically illustrate the catastrophic nature of the applicant's injuries.

The Law: 

I adopt my exposition of the law in respect of the Victims of Crime Assistance Act 2009 (VOCAA) as set out in Kennedy v. Faafew [2010] QDC 21, paragraph 5.

I refer to and adopt my exposition of the relevant law under the repeal provisions of the Criminal Offence Victims Act 1995 (COVA) as set out in paragraph 6 of Paterson v. Chand and Chand [2008] QDC 214.

Compensation: 

Ms Isaac, who appears on behalf of the applicant, seeks compensation as follows:-

(1)Item 27 - facial disfigurement or bodily scarring (minor/moderate) - 2% - 10%.

Dr Mark Donaldson notes in his report dated 31 December 2009 (Exhibit MJD1, affidavit of Mark Donaldson sworn 20 January 2010) that the applicant suffered moderate cosmetic facial disfigurement to his right lower eyelid, due to the lacerations. The right eye itself, he noted, was also cosmetically disfigured.

Ms Isaac submits that an order of 10% of the scheme maximum ($7,500) should be made under this item. Ms Isaac stresses in her oral submissions that although the area of the disfigurement/scarring is confined, the cosmetic disfigurement of the eye itself is quite significant, is referred to by the applicant in his affidavit material as a matter that he finds very difficult, and accordingly submits that it would be appropriate to make an order at the 10% level (i.e. the top of item 27 range) rather than at a lower level.

I am persuaded by this argument and accordingly I order 10% of the scheme maximum ($7,500) to reflect the level of scarring and disfigurement identified by Dr Donaldson in his report.

(2)Item 29 - loss of vision (one eye) - 70%.

Dr Donaldson notes (Exhibit MJD1, affidavit of Dr Mark Donaldson sworn 20 January 2010) that, as anticipated at sentence, the applicant has now suffered a total loss of vision in his right eye, which is permanent, and there is no surgery that could improve his vision. The only surgery that might subsequently occur is for a prosthetic eye to be inserted, and that carries its own further potential catastrophic consequences in respect of the applicant's "good eye".

Accordingly, I accept the submissions made by Ms Isaac and I award 70% ($52,500) pursuant to item 29.

(3)Items 31-32 - mental or nervous shock (minor) - 2% - 10% (moderate) - 10% - 20%.

The applicant has been diagnosed by Dr Karen Chau, psychiatrist, as suffering from post-traumatic stress disorder (PTSD), generalised anxiety disorder, social phobia and major depressive disorder, all arising as a result of the subject injury. The applicant commenced cognitive behaviour therapy (CBT) with Dr Chau in 2009, but failed to follow up with that therapy due to a misunderstanding. However, I note from Dr Chau's report that the applicant is to recommence the CBT with Dr Chau in 2010. Dr Chau assessed the applicant's psychiatric conditions (as diagnosed above) to be "minor or mild in severity" (Exhibit KMC1, affidavit of Karen Chau affirmed 22 January 2010).

Ms Isaac argues that I should, in assessing the level of disability pursuant to this item, take account of the fact that there were four separate conditions diagnosed and, in that respect, Ms Isaac relies on the decision of Kingham DCJ in RSB v. RAR [2009] QDC 195. However, as I read Dr Chau's report, it seems to me that she is providing an assessment of the totality of the psychiatric conditions that she has diagnosed, and has assessed them (as I've indicated) to be "minor or mild in severity", although I accept that there is clearly significant further therapy that Dr Chau considers should be undertaken.

In my view it would be appropriate therefore to award 10% of the scheme maximum (i.e. the top of the minor range) pursuant to item 31.

Contribution: 

The applicant has not contributed in any way, direct of indirect, to his own injuries (COVA S.25(7)).

Conclusion: 

I order that the respondent, Guy Johnathon Bierton, pay the applicant, Luke Shane Knight, the sum of $67,500.