Nolde v Karger[2010] QDC 46

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicant seeks compensation pursuant to s 24 Criminal Offence Victims Act 1995 (“COVA”) for physical injuries caused by an attack by the respondent on 14 January 2007. COVA was repealed by the Victims of Crime Assistance Act 2009 (“VOCAA”) which came into force on 1 December 2009. The originating application was filed on 23 November 2009. The transitional provision in s 155 VOCAA requires the application to be determined pursuant to COVA.

2. [2]
   On 7 December 2007 in the District Court at Brisbane, the respondent pleaded guilty to causing grievous bodily harm to the applicant and other offences. He was sentenced to five years imprisonment with a parole eligibility date after he had served two years, namely on 14 January 2009. The period of 326 days of pre-sentence custody served by the respondent commencing on 15 January 2007 was declared to be imprisonment already served under the sentence.

3. [3]
   The application and supporting affidavit material was served on the respondent on 8 February 2010.^[1]

Circumstances of the offences

4. [4]
   At the time of the offence, the applicant was a 31 year old site foreman. The respondent was 17 years of age.

5. [5]
   In the early hours of 14 January 2007, a dispute arose between the applicant and a group of persons including the respondent in the vicinity of the Manly railway station. The applicant moved past the group following an altercation with another group member. The respondent obtained a metal pole and struck the applicant to the head from behind, causing him to fall to the ground. Prior to striking the applicant, the respondent was heard to say “I’ll smash him.”^[2]

Injuries and medical reports

6. [6]
   The applicant sustained very serious injuries as a result of the blow, including a closed head injury, left facial fractures, an injury to the optic nerve of the left eye and an extradural haematoma.

7. [7]
   The applicant’s Glasgow Coma Score at the scene of the assault was 3/15. While being transferred to the Princess Alexandra Hospital (“the Hospital”) by ambulance, that score improved to 7/15.^[3]

8. [8]
   The applicant was a patient of the Hospital’s Intensive Care Ward for 10 days.^[4] He was discharged to the Hospital’s neurosurgical ward on 24 January 2007,^[5] where he remained until his admission to the Brain Injury Rehabilitation Unit on 19 February 2007.^[6] He was discharged from the Hospital on 5 April 2007.^[7]

9. [9]
   In his affidavit filed 18 January 2010, the applicant states that his memory of the assault is extremely vague. He recalls certain events two weeks prior to the date of the assault, but has no other recollection until he woke up in the Intensive Care Unit at the Hospital.^[8] His official period of post-traumatic amnesia was 19 days.^[9]

10. [10]
    A CT scan was undertaken at the Hospital on 15 January 2007. The subsequent report stated:^[10]

“HEAD

Large comminuted left skull fractures arising from the bregma and involving the frontal, parietal and temporal bones and the greater wing of sphenoid. There is 6mm of depression of the greater wing of sphenoid fracture, and both the sphenoidal and frontal bone fractures extend into the left orbit.

There is a fracture of the floor of the anterior cranial fossa (left orbital roof) with a 1cm bony fragment displaced superiorly into the left frontal lobe.

…

FACE

Fracture of the left orbital roof with superiorly displaced fragment. Fractures of the orbital floor, lamina papyracea and lateral orbital wall (involving the body of the zygoma, fronto-zygomatic diastasis and comminuted fracture of the greater wing of sphenoid).”

11. [11]
    Dr Gregory Ohlrich, neurologist, examined the applicant on 26 March 2009. In his report dated 3 April 2009, Dr Ohlrich assessed the applicant as having sustained a moderately severe head injury.^[11] He described the applicant’s head injuries at the time of admission to the Hospital as follows:^[12]

“CT head scan carried out at PrincessAlexandraHospital on admission revealed large comminuted skull fractures involving the left frontal, parietal and temporal bones and the greater wing of the sphenoid. There was a 6mm depression of the greater wing of the sphenoid fracture and both the sphenoidal and frontal bone fractures extended into the left orbit. There was a fracture of the floor of the anterior cranial fossa with a 1cm bony fragment displaced superiorly into the left frontal lobe. There were two left frontal and one left temporal cerebral contusions measuring up to 15mm in diameter.

 There was moderate subarachnoid blood overlying the left side of the brain and extending into the sylvian fissure. There was hypodensity in the left frontal and parietal lobes consistent with early oedema.

There were multiple left-sided facial fractures.

On 14 January 2007, a left frontal craniotomy was performed for evacuation of a left acute extradural haematoma. Also, a lateral canthotomy was performed for the left orbital compartment syndrome… .”

12. [12]
    Dr Ohlrich states:^[13]

“As a result of the head injury from the assault, he has been left with the following permanent neurological deficits:

1. Significant impairment of memory and cognitive function and some personality change;

2. Post-traumatic epilepsy. This has been a direct result of the head injury sustained in the assault. Although he has not had any epileptic episodes since September 2007, he will need to take anticonvulsant medication indefinitely and probably permanently. There will always be a small risk of epileptic seizures occurring in the future, despite the fact that he is taking this anticonvulsant medication;

3. Left optic atrophy. I will leave the assessment of this to the ophthalmologist;

4. Some mild expressive speech disturbance.”

13. [13]
    Traumatic optic atrophy has led to permanent visual impairment in the applicant’s left eye.^[14] The applicant underwent ophthalmic review that was undertaken by Dr Frank Howes on 17 April and 2 May 2007. In his subsequent report, Dr Howes states:^[15]

“Afferent papillary pathways: assessment of his pupils demonstrated a significant left afferent papillary defect.

Visual Fields: demonstrated a significant reduction in retinal sensitivity on the left. The loss if diffuse. The right eye however is completely normal with full visual field…

…

Summary:

Brett has a traumatic left optic neuropathy that is in all likelihood stable at this point.”

14. [14]
    At the time of these assessments, Dr Howes was of the opinion that the applicant was capable of retaining his driver license.^[16]

15. [15]
    In his report dated 24 September 2009, Dr Frank Howes, the applicant’s treating ophthalmologist, notes:

“Previous extradural haemorrhage with midline shift, left frontal and temporal contusions and traumatic subarachnoid haemorrhage.

Traumatic left optic neuropathy in association with left orbital fractures and bleeding.

…

He continues to show left afferent papillary defect associated with the optic atrophy previously identified.

…

Visual fields have improved a small amount on the left.”^[17]

16. [16]
    The applicant was examined by Dr Jan Ewing, neuropsychologist, on 5 and 12 October 2009. In her report dated 22 October 2009, Dr Ewing assesses the applicant as suffering from an adjustment disorder with mixed anxiety and depressed mood. Dr Ewing states that “(t)his disorder is currently mild but is increasing with time and is likely to become more severe if left untreated.”^[18] She recommended the applicant undergo counselling by a clinical neuropsychologist or clinical psychologist.

17. [17]
    On the subject of the applicant’s cognitive impairment, Dr Ewing states:^[19]

“… the current neuropsychological assessment revealed a man with generally intact intellectual abilities in the Average range, consistent with premorbid estimates. However, he is showing persistent mild impairment on a range of tasks… The deficits have been demonstrated in a consistent manner over two examinations, more than two years apart …”

18. [18]
    In the course of the assessment by Dr Ewing, the applicant acknowledged that he smoked marijuana “about twice a week. His most recent use prior to the current examination was about 8 cones a week previously.”^[20] Dr Ewing notes the possible contributory effects that the applicant’s marijuana use may have upon his cognitive deficits. She states:^[21]

“It is also possible that his marijuana use has interfered with his recovery and is currently exacerbating his difficulties with motivation, initiative and memory/concentration difficulties. Acute and chronic effects of marijuana can impact these functions, in particular recall of unstructured verbal material, albeit these effects are generally mild.”

19. [19]
    In his victim impact statement tendered at sentence, the applicant states:^[22]

“When waking from the coma communication was virtually impossible. I couldn’t speak or write at all. My balance is still bad but when I woke I couldn’t stand at all and the right hand side of my body was paralysed. My hear was sore from the injuries in my face and skull.

…

I have a lot of trouble trying to remember everyday things like peoples names, what they do … My level of communication has dropped significantly with my vocabulary suffering. … All I seem to think about now is about how much I have lost about myself and my lifestyle. I am very sad.

…

When I do go out I am nervous about passing groups of people. My confidence is very, very low so I avoid lots of things. Meeting new people feels very odd.

…

Before this I was fairly sociable and went out regularly, now I am reluctant to but when I do I am nervous about groups of people. My financial situation is now changed and this makes things difficult also. I used to love being in public and meeting new people, going to dinner, having BBQ’s and being a very sociable happy man.”

The applicable principles

20. [20]
    The assessment of compensation is governed by Part 3 COVA. It is necessary to bear in mind that compensation is designed to help the applicant and is not intended to reflect the compensation to which an applicant may be entitled under the common law or otherwise (s 22(3)). The assessment of compensation does not involve applying principles used to decide common law damages for personal injuries (s 25(8)).

21. [21]
    The amount of compensation cannot exceed the scheme maximum (s 25(2)). The scheme maximum provided by s 2 of the Criminal Offence Victims Regulation 1995 is $75,000.00. The award for a particular injury cannot exceed a percentage greater than that contained in Schedule 1; the compensation table (s 25(4)).  If there is more than one injury the amounts must be added together, but the total cannot exceed the scheme maximum (s 25(3)).^[23] 

22. [22]
    The maximum amount of compensation provided under COVA is reserved for the most serious cases and the amounts provided for in other cases are intended to be scaled according to their seriousness (s 22(4)). The approach to the application of s 22(4) was explained by the Court of Appeal in R v Ward, ex-parte Dooley.^[24] The assessment requires consideration of the most serious example of the relevant injury. The injury being considered must be scaled accordingly. The court explained:^[25]

“But in our opinion the proper method is to fix the compensation for, say, severe mental or nervous shock, at the appropriate place in the range 20 per cent to 34 per cent of the scheme maximum, which is done by considering how serious the shock is in comparison with the “most serious” case, which must be compensated by an award of the maximum, 34 per cent. This illustrates the point that the compensation table has no relationship to what would be awarded as damages in tort; a crime victim permanently institutionalised by the psychological results of an assault could, on that account, get no more than $25,500.”

23. [23]
    If the applicant suffers more than one of the injuries in the Compensation Table, s 25(3) requires that the applicable amounts be added together, but if the total is more than the scheme maximum, only the scheme maximum may be ordered to be paid. Section 26 of the Act is aimed at ensuring that harm that should be treated as a single state of injury is treated as a single injury, but as is explained by McMurdo P in Riddle v Coffey^[26] this does not prevent the relevant amounts in the Compensation Table from being added together.  However Her Honour said:

“The Act intends to provide full compensation within the limits it imposes; it does not encourage or authorise duplication of compensation for what is effectively the same injury.  The correct approach will always depend on what is fair and reasonable on the particular facts of each case, within the limits of the Act, and appeal courts will not lightly interfere with these exercises of discretion.”^[27]

24. [24]
    In that case the applicant suffered multiple injuries inflicted by a cane knife. He suffered injuries to his head, back, left forearm, thigh, shoulder and neck. The primary judge assessed compensation by reference to each individual injury and also made an award under item 25 for moderate stab wounds. In doing so the Court of Appeal held that the primary judge had effectively twice compensated the applicant for the same injury.^[28]

25. [25]
    The Court of Appeal considered another case involving multiple injuries in Wren v Gaulai.^[29]  Fraser JA said:

“[23] No doubt the courts are obliged to perform the task required by the Act fairly and reasonably and to avoid double compensation for the same consequences of the applicant's injuries, but the legislative intention is that the amount of a compensation order should be the sum of each amount obtained by assessing the seriousness of each injury described in an item by comparison with the most serious example of any such injury, and then scaling up accordingly within the range, or up to the maximum, set out opposite such item. If the total sum exceeds the scheme maximum, then the amount of the order is the scheme maximum.

[24] 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.

[25] In some cases that may be impractical. In R v Jones, ex parte Zaicov Holmes J referred with approval to Wilson J's observation in M R v Webb that:

"It is often the case that an applicant's injury could be categorised under more than one head in the compensation table. Of course an applicant is prima facie entitled to compensation for all the component parts of his or her overall condition resulting from the offence, but the court must be careful to avoid compensating for the same component under more than one head and so overcompensating the victim." 

[26] Applying that principle, Holmes J observed that the applicant might have been allowed a separate amount in respect of the scarring (item 28: "bodily scarring (severe)"), but that it was equally open for the judge to regard the scarring as part and parcel of the gunshot wound (item 26: "gunshot wound (severe)").”

The applicant’s submissions

26. [26]
    In her written submissions, Ms Cappellano for the applicant submitted that the following injuries in the compensation table were applicable:

1.  Bruising/laceration etc. (minor/moderate)   2%

8.  Facial fracture (severe)     22%

10.  Fractured skull (brain damage – minor/moderate)  25%

29.  Loss of vision (one eye)     5%

31.  Mental or nervous shock (minor)    10%

27. [27]
    At the hearing, the applicant was granted leave to file and read a copy of the affidavit of Abigail Webb exhibiting an undated report from ophthalmologist Dr Frank Howes. The affidavit was served upon the respondent at the Wolston Correctional Centre on 1 March 2010. In his report, Dr Howes assessed the applicant as having sustained a loss of gross visual function of 10% - 15%. On the basis of this additional medical evidence, Ms Cappellano submitted that the appropriate award for loss of vision under item 29 was 10%, rather than the 5% contained in the applicant’s written submissions.

28. [28]
    Ms Cappellano therefore sought an award of 69% of the scheme maximum, which is $51,750.00.

Assessment

29. [29]
    The applicant has sustained serious injuries as a consequence of being struck by the respondent with a metal pole. He suffers from ongoing post-traumatic epilepsy and affected vision in his left eye. Symptoms relating to his adjustment disorder persist, with Dr Ewing of the opinion that these symptoms are likely to increase in severity if left untreated. The applicant has been left with permanent mild cognitive deficits.

30. [30]
    Item 10 in the compensation table (‘Fractured skull (brain damage-minor/moderate)’) provides for a range of 10%-25% of the scheme maximum. Dr Ohlrich is of the opinion that the applicant sustained a moderately severe head injury, with accompanying significant impairment of cognitive function. Dr Ewing’s assessment of the applicant’s cognitive impairment differs in degree. She is of the view that the applicant’s cognitive impairment is persistent yet mild in nature. Bearing in mind the requirement to scale injuries according to their seriousness, and taking the applicant’s severe skull fractures and the mild yet persistent nature of his cognitive deficits, I am of the view that an award of 20% of the scheme maximum is appropriate.

31. [31]
    The applicant’s vision in his left eye has been impaired, but he does retain some vision. In accordance with the methodology adopted by Fraser JA in Wren v Gulai,^[30] I am of the view that the applicant’s eye injury can be separately assessed under Item 29 (“Loss of vision (one eye)”) without duplicating the compensation awarded to the applicant in respect of his facial fractures. The applicant has suffered a loss of vision that may be considered not insignificant, as detailed in the report of Dr Howes read at the hearing. As submitted by Ms Cappellano at the hearing, an award of 10% of the scheme maximum is appropriate.

32. [32]
    Dr Ewing assesses the applicant’s adjustment disorder to be mild in nature, however liable to increase in severity if left untreated. She considers the applicant’s condition to fall within “the upper band of the Mild category.”^[31] Bearing in mind the requirement to scale injuries according to their seriousness, an award of 10% of the scheme maximum is appropriate, falling within Item 31 (‘Mental or nervous shock (minor)’).

33. [33]
    The applicant sustained multiple left sided facial fractures, as detailed in the radiology report prepared at the Hospital on 15 January 2007. The facial fractures must be assessed in conjunction with the applicant’s left eye injury in order to avoid duplication of compensation. Item 7 (“Facial fractures (moderate)”) is the appropriate item in the compensation table. An award at the top of the range is appropriate, namely 20% of the scheme maximum.

34. [34]
    I accept the applicant’s submission that his facial bruising and lacerations justify an award of 2% of the scheme maximum.

35. [35]
    I assess compensation in accordance with the items in the compensation table as follows:

10.  Fractured skull (brain damage-minor/moderate)  20%

29.  Loss of vision (one eye)     10%

31.  Mental or nervous shock (minor)    10%

7.  Facial fracture (moderate)     20% 

1.  Bruising/laceration etc. (minor/moderate)    2%

  62%

36. [36]
    This leads to a total assessment of $46,500.00.

Contribution

37. [37]
    At sentence, the Crown Prosecutor stated that the applicant was aggressive towards the respondent’s group. As indicated above, the applicant has no memory of events. The assessment must be based upon the facts accepted at sentence.^[32]

38. [38]
    At sentence, I said:^[33]

“The offence of grievous bodily harm occurred shortly afterwards. There was a dispute between your group and the complainant. It seems that the complainant may have been aggressive towards Mr Taylor, who was a member of your group. However, what you did was in no way justified. Your counsel, Mr East, quite correctly said that your conduct was completely disproportionate.”

39. [39]
    The respondent’s conduct was so disproportionate to the applicant’s behaviour that I am of the view that there should be no reduction in the assessment.

40. [40]
    The applicant’s marijuana use must also be taken into account for the purposes of assessing its contribution to his adjustment disorder. In SAY v AZ,^[34] Holmes JA stated:

“Only those injuries to which the relevant offence has materially contributed will be compensable. … Where there is a single state of injury produced by a number of factors, some or all of which warrant a reduction in the award, the court must do its best to make allowance for their contribution, although the evidence may not lend itself to any precision. Often a broad-brush approach of the kind adopted by Thomas J.A. in Sanderson v. Kajewski will be necessary.”

41. [41]
    In commenting upon the applicant’s marijuana use and cognitive deficits, Dr Ewing states:^[35]

“… these deficits were also noted a few months post-injury (when marijuana use was presumably less relevant) and his difficulties with word-finding and expressive language, stimulus overload and working memory, which tend to be most disturbing to him, are less likely to be attributable to his marijuana use and more likely to be attributable to the assault.”

42. [42]
    Taking into account Dr Ewing’s opinion, I accept Ms Cappellano’s submission that there should be no reduction in the assessment made of the applicant’s adjustment disorder.

Order

43. [43]
    I order that the respondent pay to the applicant the sum of $46,500.00 pursuant to s 24 Criminal Offence Victims Act 1995 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 Brisbane on 7 December 2007.