Hong v Gosbee
[2011] QDC 231
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- Unreported Judgment
- Hong v Gosbee[2011] QDC 231
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Hong v Gosbee[2011] QDC 231
Hong v Gosbee[2011] QDC 231
DISTRICT COURT OF QUEENSLAND
CITATION: | Hong v Gosbee & Anor [2011] QDC 231 |
PARTIES: | DAMIEN ERROL HONG (applicant) V SHARMA JADE GOSBEE (First respondent) and ASHLEY THOMAS SLANN (Second respondent) |
FILE NO/S: | D 28/2009 |
DIVISION: | Civil |
PROCEEDING: | Application for Criminal Compensation |
ORIGINATING COURT: | Mt Isa |
DELIVERED ON: | 2 September, 2011 |
DELIVERED AT: | Beenleigh |
HEARING DATE: | 21 June 2011 |
JUDGE: | Dearden DCJ |
ORDER: | That the first respondent Sharma Jade Gosbee and second respondent Ashley Thomas Slann pay the applicant Damien Errol Hong the sum of $49,500. |
CATCHWORDS: | Application – criminal compensation – grievous bodily harm with intent – assault occasioning bodily harm – bruising/laceration – facial disfigurement and scarring – facial fractures – head injury – loss of vision – mental or nervous shock |
LEGISLATION: | Criminal Offence Victims Act 1995 (Qld) ss. 24 and 25(7) Victims of Crime Assistance Act 2009 (Qld) s. 167(2) |
CASES: | Bennett v Dowd [2011] QDC 11 Michael v Christiansen [2010] QDC 157 R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320 R v Ward; ex parte Dooley [201] 2 Qd R 436 RMC v NAC [2009] QSC 149 WHG v LJC [2010] QDC 395 |
COUNSEL: | Mr J Sheaffe (solicitor) for the applicant No appearance for the first and second respondents |
SOLICITORS: | Dale & Fallu, solicitors for the applicant No appearance for the first and second respondents |
Introduction
- [1]The second respondent, Ashley Thomas Slann, pleaded guilty in the Mt Isa District Court before me on 14 November 2007 in respect of a count that, with intent to do some grievous bodily harm to the applicant, he did grievous bodily harm to the applicant. The second respondent was sentenced to five years imprisonment, suspended after serving 18 months imprisonment, with an operational period of five years.
- [2]The first respondent Sharma Jade Gosbee appeared in the Mt Isa District Court on 9 February 2009 before me and pleaded guilty (relevantly) to one count of assault occasioning bodily harm in company in respect of the applicant. The second respondent was sentenced to a 12 month intensive correction order.
Facts
- [3]In the early hours of 17 October 2005, the applicant and a companion, Kevin Gilmore, attended The Club, a nightclub on Isa Street, Mt Isa. At about 1.00am, the applicant and Mr Gilmore left the nightclub and waited in the car park of the nightclub for a taxi. As the applicant and Mr Gilmore were waiting for a taxi, the first and second respondents approached the applicant and Mr Gilmore and began taunting and abusing them, suggesting that the applicant and Mr Gilmore were gay, and challenging the applicant and Mr Gilmore to a fight, which the applicant and Mr Gilmore declined.
- [4]The first respondent swung a punch at Mr Gilmore which missed. The applicant and Mr Gilmore attempted to walk away but they were followed by the first and second respondents. The first respondent king hit the applicant in the jaw with a closed fist. The first respondent punched the applicant a second time on the chin, which caused the applicant to fall to the ground. The first respondent then started kicking the applicant in the head with significant force. The applicant was unconscious before hitting the ground and was lying unconscious on the ground.
- [5]The second respondent then approached the applicant, but instead turned to Mr Gilmore and threw a punch at him. Mr Gilmore threw a punch towards the second respondent, which connected with him. Mr Gilmore ran towards where the applicant was being kicked on the ground and forced the first respondent away from the applicant. Mr Gilmore chased the first respondent into the garden area of the car park, at which stage with first respondent turned and put his arms up preparing to fight Mr Gilmore. Mr Gilmore tried to defend himself by punching the first respondent, but his punch did not successfully connect. The first respondent threw a punch which connected with Mr Gilmore’s head. Mr Gilmore was punched twice, which made him feel dazed. Mr Gilmore then turned and saw the second respondent kicking the applicant on the ground. Mr Gilmore describes the second respondent as “kicking into [the applicant] as hard as he could. He showed no remorse. He just kept kicking and kicking him into his head.”
- [6]Mr Gilmore then ran towards the police station, chased for a time by the first respondent, seeking to get help. The first respondent, after realising where Mr Gilmore was running to, yelled to the second respondent “Let’s go. C’mon let’s go.”
- [7]The kicking of the applicant by the second respondent was witnessed on a closed circuit camera by a police officer, Sgt Brendan Halloran. Although the incident was not recorded, it was described in these terms:-
“I observed the male who was standing up, continually kick and stomp the body and head of the person on the ground. This person kicked the prone person in the rib and the abdomen area numerous times before kicking the head. Then he stomped on the prone persons head and face three times. The last stomp was delivered so hard that it momentarily threw the standing male off balance. I observed that each time a kick was delivered the body on the ground rocked lifelessly.
…
I recall that the male person placed his hands on his hips and appeared to be trying to catch his breath. A short time later, when he was approximately three metres away he turned back towards the body on the ground, and ran a few steps before delivering a soccer style kick to the prone persons head. I observed the prone person’s head momentarily lift off the ground, the body rock violently.
…
After delivering this kick, the standing male continued to stomp on the head and face of the prone person before turning his attention to the body and chest area. The standing male then walked to the opposite side of the body on the ground and after a short break, delivered numerous kicks and stomps to the prone person’s body, chest and abdomen.
…
During the time of my observation of the incident, I saw the male person deliver in excess of 20 kicks and stomps to the prone person’s body and head. These were delivered with the left and right feet but mainly the right.”
[It is clear in context that this is a description of the second respondent brutally assaulting the applicant while lying prone on the ground in the car park].[1]
Injuries
- [8]At the sentence proceeding, the prosecutor outlined the following injuries suffered by the applicant:-
“[The applicant] had a swollen face; multiple lacerations, large superficial bruise, right temporoparietal region; bruising to the right shoulder and both knees; multiple soft tissue facial injuries, bilateral periorbital haematoma with chemosis; scan to the brain reported as normal, CT scan of the facial bones reported a fractured medial orbital wall, ethmoid sinuses, nasal bones and orbital floor. [The applicant] was discharged from hospital on the 25th October 2005.”
The applicant spoke in his victim impact statement of suffering double vision for six months.[2]
The Law
- [9]The application in these proceedings was filed on 16 October 2009, 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. Pursuant to VOCAA s. 167(2), the application proceeds pursuant to the repealed provisions of COVA s. 24.
- [10]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
- [11]Mr Sheaffe, who appears for the applicant, seeks compensation as follows:-
(1) Item 2 – Bruising/laceration etc (severe) – 3%-5%
- [12]The report of Dr Anthony Lynham, maxillofacial surgeon, indicates that the applicant “suffered significant facial bruising and swelling. [The applicant] had bilateral periorbital haematomas and subconjunctival haematomas [i.e. swelling and bruising about the eye regions]. [The applicant] also had bilateral infra-orbital nerve paresthesia [i.e. numbness to the area of the cheeks],…multiple lacerations to his right and left brow regions, to his orbital areas, and also to his upper and lower lips.”[3]
- [13]Dr Mushaya, medical practitioner, Townsville Hospital, notes that when the applicant was admitted to the Intensive Care Unit, Townsville Hospital (after a transfer from Mt Isa Hospital) on 17 October 2005, ICU staff observed “swollen face, multiple lacerations, large superficial bruise of right temporoparietal region, bruising right shoulder and both knees.” Doctor Mushaya states that on his examination of the applicant, he noted the following injuries:-
- “Multiple soft tissue facial injuries
- Bilateral periorbital haematoma with chemosis
- CT of the brain was reported as normal
- CT facial bones reported fracture medial orbital wall, ethmoid sinuses, nasal bones and orbital floor."[4]
- [14]It is submitted that the injuries sustained by way of bruising and laceration should be compensated a 5% of the scheme maximum ($3,750). I accept this submission and accordingly award 5% ($3,750) pursuant to item 2.
(2) Item 11 – Fractured skull (brain damage – severe) – 25%-100%
- [15]It is submitted that although the applicant did not sustain a fractured skull, he sustained a closed head injury causing cognitive deficits and personality changes, chronic post traumatic headaches and speech deficits, as well as a sleep disorder.
- [16]Dr Scott Campbell, neurosurgeon, notes (relevantly) that the applicant was diagnosed with:
“(a)closed head injury resulting in cognitive deficits and personality change
- (b)chronic post traumatic headaches
- (c)speech deficit
- (d)bilateral infra-orbital nerve injuries.
- [17]In respect of the cognitive deficits, Dr Campbell considered that the applicant suffering a 12% whole person impairment; with respect to the speech deficit a 2% whole person impairment; with respect to the chronic intermittent headaches (once per month and rate up to 8/10) a 1% whole person impairment and with regard to the bilateral infra-orbital nerve injuries (numbness of the cheeks) a 2% whole person impairment.[5]
- [18]Dr Anthony Lynham, maxillofacial surgeon, notes that the applicant is suffering from “sleep disturbance”, an impairment which he rates at “5% due to reduced daytime alertness and inability to concentrate at work”.[6]
- [19]Although not clearly articulated in this terms, Mr Sheaffe’s submissions in respect of these injuries (a closed head injury without a “fractured skull”), are essentially that the court should proceed pursuant to s. 25(6), which requires the court to decide the relevant amount by comparing the injury to injuries directly (or most closely) comparable to the item table in Schedule 1, having regard to the amounts that may be ordered to be paid for those injuries.
- [20]Mr Sheaffe relies on the decision in Bennett v Dowd [2011] QDC 11, para 6(1) to argue that an award should be made at a similar level to the award made for a fractured skull (brain damage – minor/moderate) in that case. I note however (in contrast to the current applicant) that Mr Bennett suffered a fractured skull as well as consequent brain damage.
- [21]In my view, an award which appropriately recognises the significant range of deficits suffered by the applicant (although he did not suffer an actual fracture of his skull), calculated on a basis analogous to item 10 (rather than item 11), would be an award of 20% of the scheme maximum ($15,000).
(3) Item 8 – Facial fracture (severe) – 20%-30%
- [22]It is submitted that the facial fractures suffered by the applicant, namely bilateral medial orbital wall and orbital floor fractures (fractures of the applicant’s eye sockets), which required the insertion of titanium plates and screws which remain in situ, and which have left the applicant with bilateral infra-orbital nerve paresthesia (numbness), should bring an award at 30% of the scheme maximum (i.e. the upper end of item 8). Although in general terms I accept this submission, I am not persuaded that this is the worst example of a facial fracture (as severe as it is).[7] In the circumstances, I order 25% of the scheme maximum ($18,750) pursuant to item 8.
(4) Item 27 – Facial disfigurement or bodily scarring (minor/moderate) – 2%-10%
- [23]
- [24]In these circumstances, I consider an appropriate award would be 3% of the scheme maximum ($2,250).
(5) Item 30 – Loss of vision (both eyes) - 100%
- [25]The applicant suffers double vision and blurred vision.[10] Dr Scott Campbell recommended that these conditions be assessed by an ophthalmologist, however no such report has been placed before the court. Based on the limited information that has been provided, I consider that a nominal award of 3% of the scheme maximum ($2,250) is appropriate pursuant to item 30.
(6) Item 32 – Mental or nervous shock (moderate) – 10%-20%
- [26]The applicant was examined by Dr Barbara McGuire, psychiatrist, on 16 December 2009. Dr McGuire provided a report dated 18 December 2009.[11]
- [27]Dr McGuire noted that the applicant displayed “hypervigilance, avoidant behaviour and increased irritability” but did not consider “that although he has the symptoms it is possible to diagnose post traumatic stress disorder.”[12] Dr McGuire concluded that the applicant “suffers his psychological disability to a mild degree.”
- [28]It is submitted that although the applicant has not been diagnosed with post traumatic stress disorder, he has suffered “mental or nervous shock”,[13] and Mr Sheaffe submits that an assessment should be made at 10% of the scheme maximum.
- [29]With respect, given the finding of a sub-clinical psychological disability, existing to a “mild degree”, I consider the appropriate assessment should be 10% of the scheme maximum ($7,500).
Contribution
- [30]I do not consider that the applicant contributed to his own injuries in any way, either direct or indirect.[14]
Apportionment
- [31]Although the more severe aspects of the applicant’s injuries were inflicted by the second respondent, it is clear from the way in which the interaction occurred between the first and second respondents and the applicant, that each was, in a broad sense, responsible for the overall injuries suffered by the applicant. Accordingly, I see no reason to make an order other than that each of the first and second respondents should be jointly and severally liable for the compensation payable to the applicant.
Order
- [32]I order that the first respondent, Sharma Jade Gosbee, and the second respondent, Ashley Thomas Slann, be jointly and severally liable to pay the applicant, Damien Errol Hong the sum of $49,500.
Footnotes
[1] Exhibit JAS2 (sentencing submissions), pp 3-5, affidavit of Joshua Sheaffe sworn 29 March 2011
[2] Exhibit JAS2 (sentencing submissions) p 7, affidavit of Joshua Sheaffe
[3] Exhibit A, p 2, affidavit of Dr Anthony Lynham sworn 17 April 2010
[4] Exhibit JAS8 (report of Dr Chrispen Mushaya 5 January 2006), affidavit of Joshua Sheaffe sworn 29 March 2011
[5] Exhibit A, pp 4-5, affidavit of Scott Campbell sworn 17 June 2011
[6] Exhibit A, p 3, affidavit of Anthony Lynham sworn 13 April 2010
[7] R v Ward; ex parte Dooley [201] 2 Qd R 436 at 438 (para 7)
[8] Exhibit A, p 2, affidavit of Anthony Lynham sworn 13 April 2010
[9] Exhibit A, p 3, affidavit of Scott Campbell sworn 17 June 2011
[10] Exhibit A, p 2, affidavit of Scott Campbell sworn 17 June 2011
[11] Exhibit A, affidavit of Barbara McGuire affirmed 11 January 2010
[12] Exhibit A, p 3, affidavit of Barbara McGuire affirmed 11 January 2009
[13] R v Kazakoff; ex parte Ferguson [2001] 2 Qd R 320, para 17; compared with RMC v NAC [2009] QSC 149; see also Michael v Christiansen [2010] QDC 157 and WHG v LJC [2010] QDC 395.
[14] COVA s. 25(7)