Green v Manzoni[2010] QDC 69

[2010] QDC 69

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 525 of 2009

SOUTHPORT 

DATE 23/02/2010

ORDER

HIS HONOUR:  This is an application for compensation under the Criminal Offence Victims Act 1995 (COVA) by Gregory John Green.  He is a mature man in his early 50s.  The respondent is a mature man who had offered the applicant the hospitality of his home, perhaps following a matrimonial breakdown.

A jury convicted the respondent, Mr Manzoni, of assault occasioning bodily harm while armed, after a lengthy trial.  That occurred in early November 2008.  In recent days Application to Appeal number 17 of 2010 has been filed in the Court of Appeal by Mr Manzoni against his conviction.  It remains to be seen whether he will get an extension of time.  I declined his application for an adjournment of this proceeding pending the outcome in the Court of Appeal

The applicant attended the cross-examination, as required by Mr Manzoni.  I directed that questioning of the applicant occur, indicating that for the protection of Mr Manzoni an order for compensation made today would be stayed until further order or until the outcome of the Court of Appeal proceedings is known.

Mr Manzoni, on the date of the offence, which was 12th of January 2006, somehow lost his self control, ordered his house guest to go and then started attacking him with what are described as baseball bats, one of metal composition, the other wood.

The cross-examination that occurred today did not particularly help Mr Manzoni’s position, although it did not make it any worse.  It confirmed that the matters Mr Green complains about are essentially self-diagnosed.  He fortunately, given what potentially might have happened, has not suffered any serious long term consequences of the attack.

He complains of interference with his hearing in the form of tinnitus which is especially bad in one ear.  That interferes with his sleep.  Indeed, he needs a noisy environment to sleep to distract him from the tinnitus.

He had, early on, alarming consequences of loss of his colour vision.  That started to resolve in a week or so and completely resolved within months.  So far as vision is concerned, he has a floater in one eye which is still there.  He sought specialist advice and was advised to come back if there is any dramatic change in vision or the floater should change.

It would appear that there is a diagnosis, a self diagnosis, of some psychological harm.  Mr Green suggests that he and indeed his children are still in fear of Mr Manzoni and that that is interfering with their respective lifestyles.

A contention arose in the cross-examination that Mr Green is not so nervous that he has refrained from contact by text message and email since the assault.  That is described by Mr Manzoni as stalking and presented as allegedly showing as less significant any psychological sequelae from the incident.

In his outline of argument filed in accordance with the practice, Mr Muir, representing Mr Green, relied on Ferguson v Kazakoff [2000] QSC 156 which I suppose allows some scope for self diagnosis rather than force applicants to engage a psychiatrist or psychologist.  The reports of those professional people sometimes tend to be much of a muchness.  It is refreshing to encounter someone the victim of an offence who has not been professionally diagnosed with post-traumatic stress disorder.

Mr Muir has placed before the Court, in line with his professional duty, Justice Byrne’s decision in RMC v NAC [2009] QSC 149.  The new case casts some doubt on the earlier one, which has been much followed.

The suggestions of Mr Muir’s outline as to compensation that might appropriately be ordered seem to me far too optimistic.  They require some re-casting, in my opinion, so that the complaints Mr Green has can more comfortably be fitted within the items in the COVA Scale.

A good deal of what he is entitled to complain of resolved without long term consequences.  That applies to his leg injury.  There is a dramatic photograph of extensive bruising on the leg, doubtless caused by one of the baseball bats.  There were injuries to the arm, including a bruise which I found it somewhat difficult to detect and a gouge mark, or something with the appearance of that, on the right elbow.

I think that more modest awards, given the transient nature of the injuries and inconvenience, are appropriate.  I would come in at the bottom of the Scale rather than the top as Mr Muir has done for items 15 and 19.

So far as loss of hearing is concerned, I think, although Mr Green says his hearing is still okay, the tinnitus complaint ought to be accepted by the Court to justify an award under item 35 which is erroneously identified in the outline as 29.  Item 29 is loss of vision, one eye 70 per cent.  Although there might be some compromise of vision from the floater it seems to me inappropriate to call that loss of vision.  As I read item 29, the 70 per cent there represents an all or nothing figure, for a permanent (as opposed to a transitory) loss.  There is a black eye shown as one of the applicant’s injuries which explains Mr Muir’s reliance on item 2 of the scale at its highest point, which again I think is optimistic.

However, I think the Court can properly invoke item 9, “Fractured skull/head injury (no brain damage)” (5 per cent to 15 per cent) to cover the laceration which was very prominent on Mr Green’s forehead, some six centimetres long.  The black eye and the consequences in respect of vision, which I accept endured in the short term, were alarming.  I would make under item 9 a minimum award of 5 per cent.

Adding it all together, there’s that five per cent; two per cent under item 35; and a further two per cent under item 31, coming, in the circumstances of lack of any expert support, at the bottom of item 31.  Likewise, as indicated, I have come in at the bottom of items 15 and 19.

Of course, there were no fractures of the head or any limb, but nonetheless there were injuries.  The total is 17 per cent.  Accordingly I order payment of Criminal Compensation by the respondent to the applicant of $12,750, this order to be stayed pending the outcome of Court of Appeal application 17 of 2010 or further order.