Houghton v Knoble[2011] QDC 276

DISTRICT COURT OF QUEENSLAND

1. [1]
   On 15 July 2002 Mr Houghton who was then 16 years of age was the victim of the offence of unlawfully doing grievous bodily harm committed by Mr Knoble who was then 17 years of age.

2. [2]
   On 19 June 2003 Mr Knoble pleaded guilty to committing the offence before His Honour Judge Trafford Walker and was sentenced to an intensive correction order.

3. [3]
   This is Mr Houghton’s application for criminal compensation to be assessed for injuries he claims he suffered because of the offence.

4. [4]
   The application is opposed.

5. [5]
   Mr Houghton is now 25 years of age having been born on 5 July 1986 and Mr Knoble is 26 years of age having been born on 1 January 1985.

6. [6]
   Mr Houghton claims to have suffered four discrete injuries as a result of the offence, namely:

1. (a)
   Bruising;

2. (b)
   Fractures of the right cheek bone involving the right eye socket;

3. (c)
   Nerve damage causing trigeminal neuropathic pain;

4. (d)
   Mental or nervous shock.

7. [7]
   The application is brought pursuant to the Criminal Offence Victims Act 1995 (the Act) which was repealed by the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.

8. [8]
   The application is within time and can be heard under the Act.

9. [9]
   The basis upon which Mr Knoble was sentenced was that he and Mr Houghton had at one time been friends through a mutual friend. In about January 2002 they had a falling out. According to Mr Houghton Mr Knoble told him not to call him as he heard that Mr Houghton was saying derogatory things about his sister. On the date the offence was committed Mr Knoble approached Mr Houghton and said: “Are you still saying stuff about my sister?”. Mr Houghton told him that he had not been saying anything about his sister and asked Mr Knoble to hear him out. Mr Knoble then grabbed Mr Houghton’s collar and Mr Houghton again asked Mr Knoble to hear him out. Mr Knoble continued to hang on to Mr Houghton’s collar and at that stage Mr Houghton had his back against a wall. Mr Knoble then punched Mr Houghton in the eye. The back of Mr Houghton’s head hit the wall. Mr Knoble then hit Mr Houghton again and connected somewhere above the right eye. Mr Knoble said “you deserve this” and then ran away.

10. [10]
    Regarding the statement that Mr Houghton had been spreading rumours about Mr Knoble’s sister the sentencing judge said that rightly or wrongly Mr Knoble received information from various sources which indicated that rumours, and unpleasant rumours, were being spread by Mr Houghton.  However the sentencing judge made no finding that that was true and said it was not an excuse for the way Mr Knoble reacted, but it gave the sentencing judge some understanding as to why a 17 year old reacted in the way that he did.

11. [11]
    In the sentencing submissions it was stated that Mr Houghton fell to the ground and was dizzy and was in pain. He lay on the ground for a few minutes and then he got up and managed to catch a bus home. When he arrived his father took him to the family doctor who advised him to take him to the Royal Brisbane Hospital for treatment.

12. [12]
    The report from the Royal Brisbane Hospital states that at the hospital Mr Houghton was examined and x-rayed and found to have a break to the right cheekbone involving the right eye socket.  His eye was tightly swollen shut and difficult to examine.  Arrangements were made for additional x-rays (CT scan) and reviewed by a maxillo-facial surgeon.  He was seen again on 19 July.  His eye could be opened and it was determined that he had double vision.  Although the CT scan report was not available the notes indicated that it confirmed a step fracture of the cheekbone involving the eye socket.  Mr Houghton went on to have the step fracture surgically reduced and fixed in place with plates and screws.  When seen on 26 July 2002 his vision was described as “improved”.

13. [13]
    There is another report from the Royal Brisbane Hospital.  It seems to contain an error in that throughout the dates referred to are 2003 whereas they would appear to be 2002.  This report states that the surgery took place on 22 July 2002 when the fracture was reduced and held in place with two plates.  On 29 July 2002 his sutures were removed.  He was noticed to still have some blurred vision with some diplopia, especially on upward gaze.  The report states he had no pain, his visual acuity at that stage was equal in both eyes and was documented at 6/5.

14. [14]
    He was seen on 26 August 2002 at the maxillo-facial clinic. It was noted his vision had improved. He had regained some sensation in the maxillary region of face and the distribution of the second division of the trigeminal nerve. A plan was made at that stage to remove the plates in six months time. Following this Mr Houghton returned to Melbourne and his care was taken over by another doctor in Victoria.  However he was seen again on 15 December 2002 at the maxillo-facial clinic at the Royal Brisbane Hospital where it was noted that he had a number of problems consisting of neuralgic pain in the region of his right cheek.  Once again this was thought to be related to the second division of the trigeminal nerve.  He was noted to be unable to smile due to difficulty moving the top lip on the right side.  He was hypersensitive across the affected region of his face.  It was felt that his jaw line was different on either side in that the right side was more prominent at the angle, and two of his teeth were numb.

15. [15]
    The report states a letter received by the Royal Brisbane Hospital from the Victorian doctor in August indicated that he had also thought Mr Houghton was suffering symptoms consistent with neuralgia, and also that he was depressed and probably suffering a post traumatic syndrome. It was noted that Mr Houghton’s care was being split between maxillo-facial surgeons in Brisbane and in Melbourne.

16. [16]
    The applicant’s evidence is contained in two affidavits filed in these proceedings. He was not cross-examined on the hearing of the application.

17. [17]
    In the affidavit filed 14 July 2010 he states at the time of the offence occurring he felt afraid for his life. Before the first hit his legs were shaking. He thought he would throw up. His brain was in turmoil. He did not know what he did to deserve this. After the first hit he felt his cheekbone crunch and he will never forget this feeling. It was a noise like a watermelon being squashed, a noise, smell and feeling he will never forget. He experienced severe pain and to this day he suffers chronic pain. The pain consists of a constant aching numbness over the right cheek area and in addition there are severe spasms triggered by facial movement, touching his cheek or lip, talking, washing his face, smiling or facial grimace.

18. [18]
    He also states he took approximately three months for the obvious bruising to subside and for six months after the assault he was only able to eat liquids and baby food through a straw. He could not put a spoon in his mouth. It took six months after the attack for his mouth to move enough to speak and chew. It still hurts to this day to chew which has caused him many problems such as starvation and eventually stomach problems. He has to wait until the pain lessens before he can eat. He still gets swelling if he accidentally knocks his face. He still to this day gets throbbing in his face. If there are sudden temperature changes (like hot to cold) he has a nerve spasm. Traces of the bruising are still visible as well as scarring.

19. [19]
    The balance of his affidavit details how following the offence he could not move his head without risking further injury. He was afraid of leaving the house. He was bedridden for three months. He was in agony. He wondered why Mr Knoble did such a horrible thing to him. His whole perspective on life changed. He moved to Melbourne because he was afraid of retribution from Mr Knoble or his mates.  He could not escape Mr Knoble mentally.  He suffered nightmares.  He was also prescribed drugs many drugs but he did not cope with so many drugs in his system.  The drugs had an adverse effect on him.  He tried to do without the drugs.  He had difficulty talking through his mouth.  He also states that after the assault he was constantly zigzagging around to doctors’ appointments, psychologists and pain clinics on a monthly basis.  He was mentally exhausted.  He spent large amounts of money on prescriptions.  He found he could not manage work.  He used to participate in sport but could no longer do so.  He also went into a “Gothic” phase.  He also found it difficult to undertake education.  His social life was affected.  Whenever he saw a fight on television he was reminded of the incident and the word “noble” appears in the media quite often, reminding him of Mr Knoble.  He suffered from mood swings and was very irritable.  He found talking or lip movement could trigger a spasm of pain.  Any facial movement could affect the chronic pain in his face.  He is not in a relationship and cannot smile let alone kiss anyone.  Because he cannot smile people think he is being rude.  He does not believe he has much of a life anymore.  He has engaged in self mutilation four times.  Twice he has attempted suicide.  He also has altered facial features now.  He believes the opposite sex has lost interest in him because he is hard to communicate with and he is always on guard to make sure they do not hurt him.  He also has difficulty lifting things.  He has difficulty sleeping.  The assault has affected him socially.  He finds it hard to trust people and they find it hard to relate to him.  He states the people who share some of his views are the people in the chronic pain group at the North Shore Hospital.  He also states in late 2009 he had a complete breakdown and was admitted to the psychiatric unit at the Ballarat Hospital.

20. [20]
    Mr Houghton saw a psychiatrist Dr Graf in Melbourne on 18 August 2004.  In Dr Graf’s report he concludes that Mr Houghton was suffering a chronic pain syndrome including trigeminal neuralgia and post traumatic stress disorder.  He states this has been complicated by depression.  In Dr Graf’s opinion Mr Houghton is severely affected by a post traumatic stress disorder.  Dr Graf states the problem in this case is that the trauma of the assault receives daily reinforcement from the fact that he continues to suffer from pain with his trigeminal neuralgia.  In his view this means that Mr Houghton never gets the opportunity to recover from his trauma and he receives daily reminders of it.  Dr Graf states chronic pain in itself is moreover a difficult enough problem to cope with any normal individual.  Trigeminal neuralgia has the additional problem of unpredictable, severe spasms of pain.  He states the individual usually becomes quite hesitant and overly careful in life in an attempt to avoid triggers.  In his opinion the prognosis for the future is quite poor.  In his opinion the most likely outcome was that Mr Houghton would bear the psychological scars of the assault in the long term and that the symptoms of post traumatic stress disorder will also be long term.  In his opinion Mr Houghton is in need of psychological treatment.

21. [21]
    Dr Graf was cross-examined on the hearing of this application. In my opinion the cross-examination did not alter his opinion in this matter.

22. [22]
    Mr Houghton also saw Dr Boocock from the Royal North Shore Hospital in Sydney on 22 September 2005.  Dr Boocock is a dental practitioner with a Masters in Pain Management and a Bachelor’s Degree in Psychology.  In her report dated 1 February 2006 she states Mr Houghton presented to her with a somewhat substantial orofacial pain condition which appears to have occurred as a result of the assault.  In her opinion Mr Houghton had developed a neuropathic pain of the second division of the trigeminal nerve.  In Mr Houghton’s case this is presenting as pain, hypersensitivity and discomfort of the right cheek, upper lip, mandibular region and neck.  In her opinion his neuralgia is severe and has resulted in considerable debilitation.  In her opinion he has a significant reduction in his ability to chew and enjoy foods and drinks as eating and drinking exacerbates Mr Houghton’s pain condition.  He experiences pain on using most facial expressions.  As far as loss of function is concerned, in her opinion he has a 50% loss of function and 80% loss of normal sensation in the effected region. 

23. [23]
    Dr Boocock was cross-examined on the hearing of this application. In my opinion the cross-examination did not alter her opinion in this matter.

24. [24]
    Dr Graf conducted a telephone interview with Mr Houghton on 4 February 2008 for the purpose of updating his previous report and ascertaining what progress he had made in his clinical condition over the last three and a half years. In his report dated 4 February 2008 Dr Graf states that in his opinion his diagnoses are unchanged from his previous report. That is chronic pain and post traumatic stress disorder complicated by depression. These conditions are severe in his opinion. Mr Houghton’s general condition had changed little since his last interview with the possible exception of some improvement in the level of his depression. Apparently, Mr Houghton stated to Dr Graf that what had changed was not his condition or symptoms but that now he is older he is more able to deal with and manage his condition whereas previously he was totally overwhelmed by his symptoms. Dr Graf states that despite this more mature adaption to his symptoms, the fact remains that the assault has had a pervasive negative effect on Mr Houghton’s development and has left him with a major disability with respect to chronic pain and PTSD. Dr Graf states given that there has been little change over the last three and a half years, the prognosis for recovery is very poor indeed.

25. [25]
    It is not in dispute that Mr Houghton developed a brain tumor at some stage during 2007. Dr Graf was asked to comment on this development in Mr Houghton’s history. Dr Graf has provided a further report dated 3 August 2009 dealing with this brain tumor.

26. [26]
    In this report Dr Graf states that the right frontal brain tumor was removed in a stereotactic operation on 15 October 2007. Apparently it was a benign brain tumor. It is accepted that the pain from the operation took three months to dissipate but that he did not suffer any neurological sequelae from the operation.

27. [27]
    Dr Graf states the history is clear in that the pain Mr Houghton has now suffered since 2002 had its onset directly from the assault and it was therefore caused by the assault and had nothing to do with the brain tumor. He states it seems from what is written in the discharge summary that the brain tumor was found “by accident” in the course of investigating for persistence of his post-assault facial pain. Dr Graf’s opinion therefore is that while an operation for a brain tumor can be expected to be somewhat stressful for anyone, the ongoing pain and psychiatric symptoms Mr Houghton experiences are related to his assault rather than the brain tumor. He states Mr Houghton has had a good outcome from surgery and this being so one would not expect any ongoing physical or mental sequelae from the brain tumor operation.

28. [28]
    Mr Houghton in his second affidavit filed 25 October 2011 states that for the last ten years he has been suffering debilitating chronic pain as a result of nerve damage and trigeminal neuralgia. He states the symptoms upon waking up are lightening-like sensations, crackling around the centre of his right cheek spreading towards his lips, eyebrows and neck. His face is so sore when he wakes because he sleeps on it. It feels like it is being compressed. The soreness tingles all over the face and there is always the constant ache of it and the pain of his nerve feeling like a hot and gritty itch. He has different moments during the day where the pain changes. Most of the time it is a scratching numbing electric pain. He has a sense of dread every moment of the day and none of the medications prescribed over the last decade have been effective in helping with the pain.

29. [29]
    Mr Houghton states he has found life extremely difficult and has attempted to take his life on three separate occasions between 2002 and 2005. He has been on the verge of suicide since but has tried very hard to stay calm and try to cope with it.

30. [30]
    He confirms in the balance of his affidavit to significant interruptions to normal living. He states the pain has affected his sex life. He is unable to be truly intimate with his partner because the act of kissing simply hurts to the point that he cannot enjoy it. It has destroyed his ability to develop truly intimate relationships with the opposite sex. It has been repeated over and over again. He meets a girl and they end up together and she sees his painful side and it inevitably affects them. He has seen many tears shed for him when his pain has been seen by people in his life with whom he was intimate. It affected the relationship negatively on most occasions because he could not always function due to the pain, so simple things like going out or making love is a real obstacle for him.

31. [31]
    He states what he finds frustrating and depressing is that because his pain isn’t obviously noticeable, he is disbelieved. His integrity is on the line. When he clenches his face and holds it with hand during a strike, some people have said “you don’t look so well mate”, and “what’s your problem?”. This has reduced him from being a positive and outgoing individual to a person who is quiet and melancholy. He finds it difficult to interact with others because he has lost his ability to trust others.

32. [32]
    He states he is still traumatised by the assault. When he was assaulted by Mr Knoble he felt like he was trying to kill him. This was a terrifying experience which he is reminded of every day. He struggles every day with trying to come to terms with this.

33. [33]
    The balance of his evidence confirms the adverse effects the offence has had upon his daily life.

34. [34]
    I accept the evidence put forward in support of the application including the evidence of Mr Houghton, Dr Graf and Dr Boocock.

35. [35]
    The submissions made on the hearing of this application by Mr Knoble accept that Mr Houghton suffered the four injuries claimed to have been suffered by Mr Houghton. I find he suffered those four injuries because of the offence.

36. [36]
    There is no dispute between the parties that my assessment of Mr Houghton’s injuries should allow for bruising at 2% which is a sum of $1,500. Therefore, I allow for this injury $1,500.

37. [37]
    Further, there is no dispute between the parties that my assessment of Mr Houghton’s injuries should allow for fractures of the right cheekbone involving the right eye socket under Item 7 Facial Fracture (moderate) at 18% which is a sum of $13,500. Therefore, I allow for this injury $13,500.

38. [38]
    However, regarding the remaining two injuries, Mr Knoble referred me to SAY v AZ; ex-parte A-G (Qld) [2006] QCA 462 where at paras 22 and 23 Holmes JA with whom the other members of the Court of Appeal agreed said:-

“[22] The court must have regard to the various limitations and                 procedural steps in s 25 in arriving at the amount of a                                           compensation order. Only those injuries to which the                                           relevant offence has materially contributed will be                                                         compensable. If, as in Stannard, it is possible to identify in                                           the state of injury consequences specifically attributable to                                           the offence, that must be done. In deciding what amount is                                           payable for a given injury, the court must consider whether                                           there are other relevant factors to which regard must be had,                             and if so, whether they should operate to reduce the amount                             which might otherwise be awarded.

[23]Where there is a single state of injury produced by a number               of factors, some or all of which warrant a reduction in the                                           award, the court must do its best to make allowance for their                             contribution, although the evidence may not lend itself to                                           any precision. Often a broad-brush approach of the kind                                           adopted by Thomas JA in Sanderson v Kajewski will be                                           necessary. The exercise may be one of discounting, or fixing                             on a lower percentage on the compensation scale to allow                                           for the role of other factors, rather than necessarily a strict                                           process of apportionment. In that exercise, it is legitimate to                             consider the nature of the other contributing factors.  Given                             that the Act’s scheme is to require an offender to                                                         compensate his or her victim, it would be reasonable to                                           suppose that contributing causes entirely independent of the                             respondent would be given considerably more weight than                                           those merely reflecting part of a continuum of offending.                                           Whether there ought to be any discount to reflect the fact                                           that other behaviour of the respondent has contributed to the                             applicant’s state of injury will depend on all the                                                         circumstances, which may include the nature of that                                           behaviour, how closely related it was to the relevant                                           offences, and the relationship of victim and offender in                                           which it occurred. The basis on which any reduction in                                           compensation is made must, of course, be clearly                                                         identified.”

39. [39]
    The five factors that Mr Knoble submits should be taken into account in deciding what amount should be ordered to be paid for these remaining injuries are:

1. (a)
   Mr Houghton’s alleged failure to obtain timely treatment and follow up on the suggested treatments by practitioners such as Dr Boocock who saw him in 2005;

2. (b)
   Mr Houghton’s unrelated brain tumor diagnosed some time in 2007 which involved three months for the pain to dissipate and according to Dr Graf, such an operation for a brain tumor could be expected to be stressful for anyone;

3. (c)
   Mr Houghton’s degree of social isolation and dislocation.  It is submitted he has undertaken little or no self help by way of seeking and holding employment and even seeking assistance from Centrelink and Welfare Agencies;

4. (d)
   Mr Houghton’s involvement in what appears to be addictive playing of computer games;

5. (e)
   Mr Houghton’s embedding himself in the so-called Gothic culture. 

40. [40]
    In my opinion Dr Boocock’s reference to a multidisciplinary pain management program in her report dated 1 February 2006 was qualified by her statement that this was something Mr Houghton could possibly do. She referred to this possibility in the context of her opinion that it was unlikely Mr Houghton’s condition would be cured or fully managed. When she was cross-examined Dr Boocock did not vary from her view of Mr Houghton’s position.

41. [41]
    Further, Mr Houghton was not cross-examined about his access to programs. He did say in his affidavit filed 14 July 2010 that he had been to pain clinics and apparently had been to the Chronic Pain group at the North Shore Hospital (paras 16 and 28).

42. [42]
    Therefore, I am satisfied Mr Houghton took the steps open to him by someone in his condition.

43. [43]
    As far as the brain tumor is concerned, in my opinion that can only be relevant to the claim for mental or nervous shock. I find that he has suffered mental or nervous shock within the meaning of the Act. The effects of the brain tumor are not significant in the scheme of things and calls for a reduction of something in the order of 5% for this Item in the Schedule.

44. [44]
    As far as his social alienation and dislocation is concerned, again I consider that is the result of the injuries. I do not accept that it is a factor that should go towards a reduction in what should otherwise be assessed for his injuries.

45. [45]
    Regarding him being addictive to computers, I do not accept again that can alter the amount to be assessed for his injuries.

46. [46]
    As far as the Gothic culture is concerned, again as Dr Graf said, this seems to be how Mr Houghton expresses his post traumatic stress disorder. That is, he still has the post traumatic stress disorder. I do not consider there should be a deduction made for that factor.

47. [47]
    In applications under the Act it is to be noted the compensation provided to the applicant is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise. Further, the maximum compensation is reserved for the most serious cases (s 22(3) and s 22(4) of the Act).

48. [48]
    Therefore, for the nerve damage injury there is no Item in the Schedule for this injury. A comparison must be made to an injury in the Schedule (s 25(6) of the Act).

49. [49]
    In my opinion the nerve damage injury in Mr Houghton’s case is severe. Mr Houghton submitted I use the adverse impacts of a sexual offence as the comparable injury. I do not accept that would be the appropriate comparison. I consider a comparable injury in this case is Item 8 Facial Fracture (severe). I allow Mr Houghton 25% which is a sum of $18,750.

50. [50]
    For the final injury, namely mental or nervous shock, I allow Mr Houghton compensation under Item 33 Mental or Nervous Shock (severe) at 30% less 5% for the effect of the brain tumor which is a sum of $18,750.

51. [51]
    Although there was mention at sentencing of some acrimony between Mr Houghton and Mr Knoble, it is to be noted the sentencing judge made no finding in that regard. As far as the evidence I have before me is concerned, it leads me to conclude that Mr Houghton did nothing to directly or indirectly contribute to his injuries.

52. [52]
    The total compensation therefore is $52,500.

53. [53]
    I order Mr Knoble to pay Mr Houghton the sum of $52,500.

54. [54]
    I am unable under the legislation to order Mr Knoble to pay Mr Houghton’s costs of this application.