DISTRICT COURT OF QUEENSLAND

Introduction:

1. [1]
   Kenneth Campbell Burton (“the applicant”) claims compensation under Part 3 of the Criminal Offence Victims Act 1995 for bodily injuries he sustained arising out of the criminal conduct of Kakahu Ferguson (“the respondent”) who was convicted by this court at Rockhampton on 27 August 2009 for the offence of unlawfully causing grievous bodily harm to the applicant on 21 October 2006 at Rockhampton, Queensland.

2. [2]
   The respondent was served with the originating application and supporting documents on 7 October 2009 but made no appearance at the hearing which proceeded in his absence.

3. [3]
   The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

Facts:

4. [4]
   The applicant was born on 30 December 1970 and was the victim of an assault causing him grievous bodily harm at the hands of the respondent on 21 October 2006 at Rockhampton. It appears some words were exchanged between 2 groups of men when the applicant was on his way home from having some drinks with a friend at which time they were both set upon by the respondent and his brother as a result of which the applicant suffered the injuries complained of.

Applicant’s injuries:

5. [5]
   The applicant claims compensation for both physical and psychological injuries suffered by him arising out the respondent’s criminal conduct. The applicant’s physical injuries are described by him in the following terms:

The applicant also claims “psychological injury” as a result of the index assault manifested by “depression and anxiety attacks”.^[2]

Physical and Psychological Injuries:

6. [6]
   Details of the applicant’s physical injuries are contained in a number of medical reports exhibited to his affidavit including the following:

7. [7]
   Details of the applicant’s psychological injuries are contained in the exhibits to the report of Mr Louis Salzman, counselling and clinical neuropsychologist filed 4 September 2009.

Applicant’s Physical Injuries:

8. [8]
   The applicant’s physical injuries are comprehensively and succinctly summarized in Dr Caroline Acton’s report of 24 June 2008 following her examination of him on “25.9.07 when he was referred for a medico legal report”. A summary of “his current complaints” to her at that time include the following:

• “Numbness of his right and left temples.  His cheek is numb on the right side as well as the right nasal bridge;

• The cavity of his nose feels numb on both sides and the numbness anywhere on his face and head is a constant reminder of what happened;

• A smashed tooth in the left maxilla (top jaw) and a lump on his right upper gum;

• His sense of taste and smell are much reduced which is significant because his occupation is that of a chef;

• Tightness in his right cheek and right side of his mouth which he feels droops a little;

• He had a palpable and audible clunk of his left tempero mandibular joint (tmj) which occurred late on his mandibular opening movement and was painless;

• Intra oral examination revealed anaesthesia (no sensation) of the right maxillary (upper jaw) gum and posterior hard palate;

• His anterior buccal gingiva (gum at the front of his mouth in the top jaw) had markedly reduced sensation”.

9. [9]
   Dr Acton further noted “from reports provided to me that he has suffered a fracture of the left and right orbits (eye sockets) as well as fractures through the maxillary (top jaw) sinuses encompassing part of the nasal bones. There is no report of a skull fracture or intra cerebral (within the brain) injury. However any loss of consciousness constitutes a head and brain injury. Dr Acton further opined “from the photographs provided and his description it would appear that he had suffered severe bruising and lacerations constituting 3-5% and a moderate facial fracture constituting 14-20% and a radiographic evidence of a fractured nose without displacement 5-8%”.

10. [10]
    Dr Acton summarised her report in the following terms:

“Kenneth Burton suffered bruising, lacerations and a maxillary and zygomatic fracture during the assault.  His facial fractures were essentially undisplaced and therefore I would consider his residual deformity to be minimal.  However his residual considerable neurological damage from these injuries is likely to have ongoing psychological effects which I am unable to quantify.”

“Mental or nervous shock” claim:

11. [11]
    With respect to the applicant’s psychological injuries the clinical neuropsychologist, Mr Salzman summarised the applicant’s “problems and deficits” in the following terms:^[3]

 “1. There were indications of impaired verbal fluency.

2. When his memory is compared with that of his peers there were indications of significant impairment.
3. When his memory is compared with his WAIS-III Full Scale I.Q. there were indications of significant levels of impairment.
4. His discrete verbal memory is impaired, what that means is that his ability to recall material which does not have a theme is impaired.
5. There were indications of perseveration during the five trials of a word list recall task.  Perseveration is considered to be a symptom of frontal lobe brain damage.
6. On an oral digit symbol task his performance was significantly below his written performance and the results suggest frontal or temporal lobe impairment.”

12. [12]
    Mr Salzman further stated “The above deficits are consistent with those of people who have sustained brain damage”, and that the applicant’s “psychological problems are consistent with the DSM-IV-TR diagnoses of Major Depressive Disorder and an Adjustment Disorder. Mr Burton reported that he was depressed prior to being assaulted but that his symptoms had been exacerbated by it.” Finally, Mr Salzman assessed the applicant’s “impairment due to emotional or behavioural disorders Class – 2- 25%” but “would deduct 10% from the above impairment level as a pre-existing problem which then yields an impairment level of 15%.

13. [13]
    In Mr Salzman’s supplementary report of 18 May 2008 (Exhibit B to his affidavit) he opined that the applicant “falls into the injury category 32, mental or nervous shock (moderate) and that is percentage of disability as a results of the assault is 15%”.

Legal principles:

 What is “mental or nervous shock”?

14. [14]
    The recent decision of RMC v NAC [2009] QSC 149 revisited this question and what was said by Thomas JA in Ferguson v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320. His Honour Byrne SJA analysed the legal history of the condition in paragraphs [25] to [37] of his judgment and ultimately came to the conclusion in paragraph [38] thereof that:

“Nervous shock” in the Act is confined to a recognisable psychiatric illness or disorder”.

Applicant’s submission:

15. [15]
    It is submitted on the applicant’s behalf that the appropriate award of compensation for the applicant’s injuries arising out of the respondent’s criminal conduct should be in the following terms:^[4]

1. (a)
   bruising laceration (severe) 5% scheme maximum      $3,750.00

2. (b)
   fractured nose (no displacement) 6% scheme maximum     $6,000.00

3. (c)
   loss or damage to teeth 6% scheme maximum      $4,500.00

4. (d)
   facial fracture (moderate) 20% scheme maximum    $15,000.00

5. (e)
   fractured skull (brain damage minor/moderate) 20%

scheme maximum         $15,000.00

6. (f)
   mental or nervous shock (moderate) 20%

scheme maximum        $15,000.00

7. (g)
   facial disfigurement (minor/moderate) 5%    

scheme maximum          $3,750.00

TOTAL:        $63,000.00

Findings on categories of injuries:

16. [16]
    On the basis of the evidence before me and the submissions made, I find that the applicant is entitled to an award of compensation against the respondent for both physical and psychological injuries and that such injuries fall within the following categories of injuries^[5] contained in the Compensation Table in Schedule 1 of the Act namely:

 (a) Item 2 – “Bruising/laceration etc (severe) ….  3% - 5%” 

I assess the applicant’s compensation in respect of this item in the sum of $3,750.00 representing 5% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence; the medical evidence before the court and in particular the photographic evidence being Exhibit “E” to the applicant’s affidavit which shows the extent of the “bruising/laceration” suffered by the applicant in the index assault.

(b) Item 3 - “Fractured Nose (no displacement) …. 5% - 8%”

I assess the applicant’s compensation in respect of this item in the sum of $4,500.00 representing 6% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court in respect of this injury namely the Rockhampton Base Hospital records and Dr Caroline Acton’s report of 24 June 2008.

3. (c)
   Item 5 – “Loss or damage of teeth … 1% - 12%”

I assess the applicant’s compensation in respect of this item in the sum of $1,500.00 representing 2% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the reference in Dr Caroline Acton’s report of 24 June 2008 wherein she refers to the applicant as describing to her “a smashed tooth in the left maxilla (top jaw)”.

4. (d)
   Item 7 – “Facial fracture (moderate) … 14% - 20%

I assess the applicant’s compensation in respect of this item in the sum of $15,000.00 representing 20% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence; the medical evidence before the court namely the Rockhampton Base Hospital reports and records and the evidence of Dr Caroline Acton contained in her report of 24 June 2008.

5. (e)
   Item 9 – “Fractured skull/head injury (no brain damage) … 5% - 1%”

I assess the applicant’s compensation in respect of this item in the sum of $7,500.00 representing 10% of the Scheme maximum payable under Schedule 1 of the Act on the basis that the applicant has suffered a “head injury” but “no brain damage” for the reason that there is no clinical evidence that the applicant suffered a “fractured skull or brain injury”, although obviously he suffered a significant head injury which caused him to lose consciousness for some time.  My findings in this respect are based upon the report from the Rockhampton Hospital Diagnostic Imaging Department dated 21 October 2006 which states “Findings:  there is no evidence of an intracranial haemorrhage.  There is no evidence of intracerebral oedema”.  Further there is a report from the same hospital and department dated 26 October 2006 which states “there is no evidence of an intra cranial haemorrhage or cerebral oedema.  The ventricular system is symmetrical.  No focal abnormality is seen”.  In addition Dr Acton notes in her report that “there is no report of skull fracture or intra cerebral (within the brain) injury.  However any loss of consciousness constitutes a head and brain injury.”  I therefore find that although the applicant suffered a “head injury” there is no clinical evidence before the court that he suffered a “fractured skull or brain damage – minor/moderate)”.

6. (f)
   Item 32 – “Mental or nervous shock (moderate) … 10% - 20%”

I assess the applicant’s compensation in respect of this item in the sum of $11,250.00 representing 15% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s personal history contained in the affidavits filed and in particular the reports of Mr Louis Salzman, neuro-psychologist which confirms the applicant’s history in respect of this condition.  As Mr Salzman’s reports indicate the applicant “was diagnosed with depression in 2000 and he was told that he was probably depressed when he was in his teens”.  I accept that the applicant suffers from a “depressive disorder and an adjustment disorder materially contributed to” by the index assault which aggravated or exacerbated a pre-existing condition for which allowance must be made in the assessment of compensation the applicant is entitled to receive arising out of the index assault.  For these reasons I find that an assessment in the above amount is appropriate.

7. (g)
   Item 27 – “Facial disfigurement or bodily scarring (minor/moderate) … 2% - 10%”

I assess the applicant’s compensation in respect of this item in the sum of $3,750.00 representing 5% of the Scheme maximum payable under Schedule 1 of the Act based upon the applicant’s own evidence and the medical evidence before the court including the Rockhampton Hospital reports and records and Dr Acton’s report referred to herein.

Applicant’s direct contribution to injury:

17. [17]
    In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

18. [18]
    I refer to the circumstances of the incident as set out in paragraph [4] above and I am satisfied that the applicant did not either directly or indirectly contribute to the injuries he sustained at the hands of the respondent.

19. [19]
    I therefore assess the applicant’s compensation in the aggregate amount of $47,250.00.

Order:

20. [20]
    I order that the respondent pays to the applicant the sum of $47,250.00 by way of compensation for the injuries sustained by the applicant and caused by the respondent on 21 October 2006.

21. [21]
    In accordance with s 31 of the Act I make no order as to costs.