DISTRICT COURT OF QUEENSLAND

1. [1]
   The respondent, Andrew John Leask, pleaded guilty in the Toowoomba District Court on 2 June 2008 to one count of grievous bodily harm in respect of the applicant Blair Angus McLauchlan. The respondent was sentenced by me to 18 months imprisonment with an immediate parole release date on the date of sentence.^[1]

Facts

2. [2]
   On 8 April 2007, the respondent and an unnamed co-offender were walking down Cummins Road, Toowoomba.  The respondent and the co-offender had been throwing items at taxis and laughing.  The applicant was driving his taxi and the co-offender hit the taxi with a freezer bag.  The taxi stopped. The applicant got out and said “come on guys, it’s my property, not yours”.  The co-offender then confronted the applicant and verbally abused him.

3. [3]
   The applicant pushed the co-offender away. The respondent then king-hit the applicant to the left side of his face and the applicant fell to the ground. The co-offender then kicked the applicant in the face and stomach. It was unclear whether the injuries (which amounted to grievous bodily harm) were caused by the respondent’s initial punch to the applicant’s face, or the co-offender’s kick while the applicant was on the ground.^[2]

Injuries

4. [4]
   The applicant suffered a fractured left eye socket, a depressed left cheekbone, bruising and numbness in the applicant’s facial area, and double vision. The applicant required surgery to his eye socket and cheekbone.^[3]

The law

5. [5]
   The application in these proceedings was filed on 30 November 2009, immediately prior to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA), which commenced on 1 December 2009.  This application falls to be decided pursuant to the transitional provisions of VOCAA s. 167(2), which preserves the applicant’s right to apply for compensation pursuant to COVA s. 24.

6. [6]
   I refer to and adopt my exposition of the relevant applicable law under COVA as set out in paragraph [6] of Paterson v Chand & Chand [2008] QDC 214.

Compensation

7. [7]
   Mr Parry, who appears for the applicant, seeks compensation as follows:-

(1)Item 1 – Bruising/Laceration etc (Minor/Moderate) – 1%-3%

Mr Parry relies on the photographs of the applicant^[4] to argue that there should be an assessment at 3% of the scheme maximum ($2,250) for bruising and laceration.  With respect, the photographs show a “black eye” but no other obvious bruising/laceration injuries.  In the circumstances, I consider 2% of the scheme maximum ($1,500) is an appropriate assessment in respect of Item 1 and accordingly I award $1,500 pursuant to that item.

(2)Item 8 – Facial Fracture (Severe) – 20% - 30%

The applicant suffered a fracture to the floor of the left eye socket and a depressed fracture of the left cheekbone.  These injuries required surgical repair under general anaesthetic five days after the injury occurred.^[5]  The surgical repair of the fractures referred to in Dr Simon Taylor’s report would appear to be the same surgery (perhaps inaccurately recalled as to date) referred to in paragraph 10 of the report of Rachelle Hampson, psychologist.^[6] In any event, the submission by Mr Parry is that the fractures of the left eye socket and left cheekbone should be assessed at the middle of the severe range for facial fracture (Item 8).  In the circumstances, I accept this submission and accordingly I award 25% of the scheme maximum ($18,750) pursuant to Item 8.

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

The report of Ms Rachelle Hampson, psychologist, concludes that the applicant was suffering from post traumatic stress disorder (PTSD) and major depression with anxiety, and notes that the applicant has previously been diagnosed with borderline personality disorder.  The applicant has suffered moderate to severe symptoms at the worst stages of the PTSD.  Ms Hampson considers that the applicant’s diagnosis of major depression and borderline personality disorder makes him a more vulnerable person, with more limited ability to cope with stressors and consequently suffering a more serious outcome.  Ms Hampson expresses the view that the applicant’s “mental or nervous shock” impact is in the moderate range of Item 32.^[7]

8. [8]
   Mr Parry submits that an appropriate assessment in the circumstances is 15% of the scheme maximum. I accept this submission and award 15% ($11,250) pursuant to Item 32.

Contribution

9. [9]
   I do not consider that the applicant has contributed in any way, either direct or indirect, to his own injuries.^[8]

Orders

10. [10]
    I order that the respondent Andrew John Leask pay the applicant Blair Angus McLauchlan the sum of $31,500.