Rambold v Piening[2011] QDC 225

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, Wayne Fowkles Piening, pleaded guilty on 9 March, 2009 at the Beenleigh District Court (relevantly) to counts of common assault, assault occasioning bodily harm and grievous bodily harm in respect of the applicant, Sharon Maree Rambold. The respondent was sentenced to six months’ imprisonment in respect of the common assault count, 12 months’ imprisonment in respect of the assault occasioning bodily harm count, and three years’ imprisonment in respect of the grievous bodily harm count. The effective head sentence (relevant to other unrelated charges) was four and a half years’ imprisonment, suspended after 18 months’ jail, with an operational period of five years.^[1]

Facts

2. [2]
   The Schedule of Facts tendered on the sentence^[2]sets out the factual basis on which the respondent was sentenced, as follows:

“[The applicant] lived in the unit next door to [the respondent] for about eight weeks. At the time of the incident, [the applicant] had lived there with her four-and-a-half-year-old daughter since January 2007.

On the afternoon of Friday 3 August 2007, [the applicant] heard [the respondent] was home next door. [The applicant] went next door to confront [the respondent] over the alleged theft of money by [the respondent’s] girlfriend. [The applicant] knocked on the front door. [The respondent] was sitting in the lounge room. [The applicant] entered the house and confronted [the respondent]. She said that she needed to speak to [the respondent] about the fact that his girlfriend may have taken some money from her. [The respondent] stood up, and walked towards [the applicant] in an intimidating manner. [The respondent] then spat in [the applicant’s] face three times.

[The applicant] was frightened, she walked out of the unit. [The respondent] then called to her and said, ‘Shazz, come back here and talk to me about this.’  [The applicant] then approached the screen door and as she got close to the door [the respondent] suddenly pushed open the door which hit her on her forearm with sufficient force to cause her forearm to bleed.

[The applicant] asked [the respondent] not to hurt her and [said] that she would call the police if he did.

[The respondent] then punched the complainant with the palm of his hand in her nose. [The respondent] also spat in her face again. [The applicant’s] nose started to bleed. [The applicant] said to [the respondent] ‘Look what you have done to me you fat fuck. I’m going to call the cops and have you done for assault. You can’t do this to me.’

Mrs Pearson, a neighbour, head [the applicant] calling ‘Look what you did to my nose’ and she heard [the respondent] laughing. Mrs Pearson saw [the applicant] wipe some spittle from her face.

[The respondent] became more aggressive and stated ‘I’m going to kill you, cunt.’  [The respondent] then picked up a piece of timber. [The applicant] turned and started to run away. [The respondent] threw the piece of timber at [the applicant]. It struck [the applicant] in the back area. [The applicant] fell to the ground and felt immediate pain in her back and was struggling to breath.

Neighbours came to [the applicant’s] assistance. An ambulance and police were called.”^[3]

Injuries

3. [3]
   The Schedule of Facts notes that “at the Logan Hospital, [the applicant] was treated for a pneumothorax in which a catheter was required to reinflate her right lung. [The applicant] had minor abrasions to her arm and significant bruise [sic] and accompanying fractures to her ribs.”^[4]

The law

4. [4]
   The application in these proceedings was filed on 11 November 2009, prior to the repeal of the Criminal Offence Victims Act 1995 (COVA) by the Victims of Crime Assistance Act 2009 (VOCAA) on 1 December 2009. Pursuant to VOCAA s 167(2), the application proceeds under the repealed provisions of COVA s 24. The application was filed within the relevant time limit pursuant to COVA s 40(1).

5. [5]
   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

6. [6]
   Mr Mould, who appears for the applicant, seeks compensation as follows:

3. (1)
   Item 2 – bruising/laceration (severe) – 3%-5%

Mr Mould submits that the applicant should receive an order of 5% (i.e. the top of the item 2 range) for a closed head injury and soft tissue injuries to the applicant’s face and nose. The photographs tendered on the sentence of the respondent^[5]indicate lacerations to the applicant’s right elbow, significant bruising to the applicant’s right shoulder blade and minor red marks around the applicant’s waist on her back, bruising either side of the spine on the applicant’s back, the entry wound (which caused the pneumothorax adjacent to the applicant’s right breast) and some minor abrasions to the applicant’s left shin. These observations of the injuries depicted on the photographs in Sentence Exhibit 8 are, in general terms, consistent with the report of Dr Peter Snelling, medical officer, Logan Hospital, who examined the applicant on her admission to the emergency department, Logan Hospital on 3 August 2007 where he noted the following injuries:

1. (a)
   minor abrasions to [the applicant’s] right forearm;

2. (b)
   minor abrasions and bruising to [the applicant’s] right third digit; and

3. (c)
   contusion over right scapular (dark 1 cm x 3 cm imprint with surround 4 cm x 6 cm bruising).^[6]

Given the requirement pursuant to R v Ward; ex parte Dooley [2001] 2 Qd R 436, to scale “within the ranges set out in the compensation table”,^[7]it is in my view more appropriate to assess the bruising/laceration injuries suffered by the applicant pursuant to item 1 (bruising/laceration etc. minor/moderate). I assess the bruising/laceration at the upper end of the item 1 range, namely 3% of the scheme maximum ($2,250).

3. (2)
   Item 23 – neck/back/chest injury (severe) – 8%-40%

Mr Mould submits that the court should assess the applicant’s injuries pursuant to item 23 at 40% of the scheme maximum. In that respect, he cites the injuries suffered to the applicant’s thoracic, cervical, and lumbar spine, as well as the collapsed lung.

Dr Malcolm Wallace, orthopaedic surgeon, examined the applicant on 9 November 2009 and prepared a report dated 14 November 2009.^[8]Dr Wallace noted that as a result of the respondent’s assault, the applicant “sustained multiple injuries including lower back pain, fractured right ribs, a pneumothorax and an injury to her right shoulder.”^[9]Dr Wallace notes that the applicant has “reached maximum medical improvement”, “remains disabled by ongoing spinal pain and pain around her right shoulder”, and had “with respect to her cervical spine … a 6% whole person impairment”, “with respect to her thoracic spine and chest wall injuries … a 6% whole person impairment”, and “with respect to her lumbar spine… a 3% whole person impairment”.^[10]

The applicant was also examined by Dr Leigh Atkinson, neurosurgeon, on 18 October 2010 who produced a report dated 25 October 2010.^[11]Dr Atkinson noted the applicant’s “minor closed head injury” for which there was no residual impairment, and concluded that she had a “5% whole person impairment of the cervical spine” although 2% of that Dr Atkinson would apportion “to pre-existing degenerative changes to the cervical spine”, with “no impairment with respect to the lumbar spine”.^[12]

In the circumstances, I consider that the collation of injuries (taking account of the conflict between Dr Wallace and Dr Atkinson), including making an appropriate allowance for the pneumothorax, would be an assessment pursuant to item 23, 30% of the scheme maximum ($22,500).

3. (3)
   Item 13 – fracture/loss of use of shoulder – 8%-23%

The report of Dr Wallace indicates that the applicant “remains disabled by ongoing spinal pain and pain around her right shoulder” for which the applicant “does not require any further investigations and … will not require any surgical treatment.”  Dr Wallace notes further that the applicant’s “employability on the open labour market has been adversely affected” and that “unless [the applicant] improves with respect to her ongoing pain, taking into consideration her training, education and experience, it is unlikely that she will find gainful employment in the open labour market.”^[13]

In the circumstances Mr Mould submits that I should make an assessment at 8% of the scheme maximum (incorrectly calculated by Mr Mould at $16,000 – more accurately calculated at $6,000) pursuant to item 13. Accordingly, I award the applicant 8% ($6,000) pursuant to item 13.

3. (4)
   Item 33 – mental or nervous shock (severe) – 20%-34%

The applicant was examined by Dr Barbara McGuire, psychiatrist on 24 June 2009 and a report was provided dated 30 June 2009.^[14]

Dr McGuire diagnosed the applicant as suffering from post traumatic stress disorder (PTSD) “to a severe degree”. Dr McGuire noted that the applicant’s PTSD was characterised by “nightmares, flashbacks, avoidant behaviour, exaggerated startle reflex, security fears, irritability etc.”^[15]Dr McGuire noted, however, that the applicant had suffered a series of stressors prior to the relevant assault, including a neighbour sexually abusing her when she was four, her father’s heart attack aged 39 and open heart surgery aged 40, and her involvement in a very violent relationship with the father of one of her children. However, Dr McGuire notes that the applicant “was coping reasonably well until [the assaultive incident] and after the incident [the applicant] has become much more significantly disabled.” Dr McGuire considered that “the incident made a material and substantial contribution to [the applicant’s] symptoms.”^[16]

In Dr McGuire’s opinion, not only did the incident (the subject of this application) make “a material and substantial contribution” to the applicant’s symptoms, but it “caused her post traumatic stress disorder.”^[17]

Mr Mould submits that the applicant’s mental or nervous shock (PTSD) should be assessed at 34% of the scheme maximum. Although it is clear that the applicant has suffered a severe mental or nervous shock injury, I am not persuaded that this is an example of the worst level of such an injury.^[18]  However, it should in my view be assessed towards the upper end of the item 33 range. Accordingly, I award 30% of the scheme maximum ($22,500) pursuant to item 33.

Contribution

7. [7]
   I do not consider that the applicant has contributed in any way, either direct or indirect, to her own injuries.^[19]

Order

8. [8]
   I order that the respondent Wayne Fowlkes Piening pay the applicant Sharon Maree Rambold the sum of $53,250.