Daley v Hicks[2011] QDC 311

DISTRICT COURT OF QUEENSLAND

The Application

1. [1]
   On 22 January 2010, this application for criminal compensation was filed. That occurred consequently to each of the respondents being convicted, in the District Court at Maroochydore, of an offence of doing grievous bodily harm to the applicant, on 14 April 2004.

2. [2]
   The respondents were conjointly charged with this and other offences arising out of the same incident and:

1. (a)
   On 9 May 2005, the second respondent pleaded guilty to these offences and was sentenced by Judge Robertson to three and a half years imprisonment suspended after twelve months for an operational period of four years (within 163 days pre-sentence custody being declared as time already served in respect of that sentence); and,

2. (b)
   On 12 August 2005, the first respondent also pleaded guilty to these offences and was sentenced by Judge Forno QC to three and half years imprisonment, suspended after serving ten months for an operational period of four years (with 172 days of pre-sentence custody being declared as time already served in respect of that sentence).

3. [3]
   At the time of the commission of the offence against the applicant, he was aged 14 years (DOB 29 June 1989) and the respondents were respectively aged 17 and 18 years. By the time his application was filed, the applicant was 20 years of age.

4. [4]
   The offence committed upon the applicant was described for sentencing purposes, as occurring at about 7.30 pm on 14 April 2004. The applicant was with a group of teenagers seated having drinks at a picnic table at Dicky Beach.  The respondents arrived with some other teenagers, who they had only just met and this group included the sister of the first respondent.  The respondents were not known to the applicant and the group he was with.  Shortly after arriving the second respondent began remonstrating with the applicant suggesting that he had insulted his girlfriend and threw a punch at the applicant’s head.  The first respondent joined in and also punched the applicant in the back of the head.  The respondents then each withdrew a metal bar that had been hidden beneath their clothing and each hit the applicant across the head.^[1]

5. [5]
   The particular injury relied upon as constituting the grievous bodily harm was described as “damage to the right eye” whereby the applicant “suffered a traumatic cataract”.

6. [6]
   Each respondent was served with the application and the materials relied upon by the applicant, but neither appeared at the hearing of the application. The first respondent remains a prisoner for whom the Public Trustee has responsibility pursuant to s 91 of the Public Trustee Act 1978.  The Public Trustee has been notified of the application and has responded to indicate that the affairs of the first respondent are not under active management and that the advice to the Public Trustee is that he wishes to take no part in the proceedings and has no assets with which to satisfy any order made against him. 

The Law

7. [7]
   This application is made pursuant to Part 3 of the Criminal Offence Victims Act 1995 (“COVA”), which provisions continue to apply to this application, despite the repeal of COVA, on 1 December 2009.^[2]

8. [8]
   The scheme provided by Part 3 of COVA is to provide for compensation for injury suffered by an applicant that is caused by a personal offence committed against that applicant,^[3] which entitlement is intended to help an applicant rather than reflect the compensation entitlement that the applicant may have under common law or otherwise.^[4]

9. [9]
   The maximum amount that may be awarded is fixed in the amount of $75,000^[5] and assessment under the Scheme is required to be by reference to the relative seriousness of an injury and the scaling of the injury against the schedule of injuries provided in Schedule 1 of COVA and the range of percentage or proportion of the Scheme maximum that may be attributable to such an injury.^[6]

10. [10]
    It is necessary to follow the statutory methodology and to assess each of an applicant’s injuries. Where it is practicable to do so, regard must be had to the statutory provisions for each comparable item and where it is necessary to have regard to more than one item of injury, it may be necessary to make adjustments to avoid duplication and to cater for the differences in ranges and maxima for separate items.^[7]

Injuries

11. [11]
    The applicant claims the following compensable injuries as a result of the personal offence committed by each of the respondents:

1. (a)
   Blunt trauma to the right eye causing right post-traumatic cataract involving:

1. (i)
   Anterior chamber hyphemia (blood in eye);

2. (ii)
   Intragel vitreous haemorrhage (bleeding within the eye);

3. (iii)
   Loss of (blurred) vision (with risk of future surgery and glaucoma) and;

4. (iv)
   Symptoms of glare.

2. (b)
   Fracture of the medial wall of his right orbit.

3. (c)
   Bruising and lacerations to the face (requiring five stitches) and including a resultant scar on the bridge of his nose.

4. (d)
   Nasal fracture.

5. (e)
   Head injury involving a right temporal lobe contusion (bruising to the brain with cerebral petchial haemorrhages (bleeding of the brain).

6. (f)
   Adjustment disorder with mixed anxiety and depressed mood (including consequent alcohol abuse).

12. [12]
    It can be noted that each of these physical injuries relate to the applicant’s head and may be seen, together with the claimed psychological effects, as consequences of the attack by the respondents on the applicant, on 14 April 2004 and which was represented, in its criminality, by the offence of doing grievous bodily harm of which each respondent was convicted.

13. [13]
    In a report dated 14 February 2008 an eye surgeon and physician, Dr David Lawson, described his assessment of Mr Daley’s condition as follows:

“… he suffered a blow-out fracture of the medial wall of his right orbit and direct trauma to the right globe with an anterior chamber hyphema and intragel vitreous haemorrhage. …

Since that time he felt his right vision has never returned to normal.  Mr Daley now notices in addition to the blurred right vision which has become slightly worse in the last few years, mild glare symptoms. …  The examination findings on 30/1/2008 were as follows:

‘His visual acuity was 6/9 in the right eye and 6/6 in the left eye unaided.  There was a mild lens opacity in a sunburst pattern and a small posterior sub-capsular lens opacity noted in the right eye.  Fundal examination showed healthy optic discs and macular areas and normal retinal periphery.  A pigmented crescent was noted on the lateral edge of the right optic disc.

Mr Daley has a right post-traumatic cataract which is causing him slight blurring of vision (approximately 5-10 per cent reduction in vision) and symptomatic glare at times.  It is likely that the cataract will continue to progress over the next few years and ultimately will require cataract surgery with replacement of his natural crystalline lens with an artificial intraocular lens implant.  This should restore good distance vision but may require him to wear glasses for near vision, particularly for the right eye.  Mr Daley will require ongoing regular eye review as there is also a risk of him developing a secondary glaucoma from his eye injury at any time in the future.’”

14. [14]
    The applicant was also assessed by a neurosurgeon, Dr David Johnson and in his report dated 5 February 2008, he observed that after losing consciousness from the impact of the blows he received and the arrival of an ambulance:

“He was taken to Caloundra Hospital and then transferred to Nambour Hospital, before being transported to the Royal Children’s Hospital the following day.  Trent had bleeding from his scalp and swelling around his right eye.  The documented physical injury sustained by Trent and confirmed with radiology and clinical examination were an intraocular bleed with resultant cataract formation, which under surveillance by Dr Lawson, ophthalmologist.  He sustained a fracture of his nasal bone and medial wall of his right orbit.  He also sustained a right temporal lobe contusion.

…..

Trent also describes a psychological effect from the assault with the ongoing fear and paranoia of further interactions with his assailant, and in general a fear for attending parties for fear of further assaults.

He describes no motor or sensory deficits.  He describes no impact on his short-term memory.  Trent is able to effectively maintain full-time work as a stone mason apprentice. …

Mr Daley was found to have been assaulted and battered about the head with a pole sustaining physical injuries to his brain, eye, nasal bone and orbital wall, resulting in the long-term a physical injury of a cataract in his right eye which is under surveillance and may need surgery in the future.  The psychological effects of this assault also appear to be significant for Mr Daley, who has an ongoing fear of public events such as parties at the Sunshine Coast where he continues to fear interactions with his previously convicted assailant.  There is no evidence of any permanent brain injury sequela as a result of him being assaulted.”

15. [15]
    In respect of the psychological effects of the offence committed on the applicant, he was assessed by a consultant psychiatrist, Dr Mungomery, who provided a report dated 7 December 2005. In that report Dr Mungomery states:

“Mr Daley presents with features of having developed an adjustment disorder with mixed anxiety and depressed mood as a result of being assaulted on 14 April 2004 with genuine fear for his life at the time of the assault, secondary pain and impairment associated with the injuries that he sustained.

It would be considered Mr Daley’s adjustment disorder was of a moderate severity in the first three-six months after the assault but with the severity of his adjustment disorder having reduced to a minor severity over the last six-twelve months although continuing to present with clinically significant depressive and anxiety symptoms.

It also is considered Mr Daley presents with features consistent with Alcohol abuse with him having a pattern of significant alcohol usage prior to the assault but with the amount of alcohol he consumes having become significantly greater since the assault and contributed to a number of charges including drinking in public and two charges of vandalism with his alcohol abuse currently considered to be of a moderate severity.  It would be hoped with treatment recommendations (as described above) that Mr Daley may have further recovery from his adjustment disorder and alcohol abuse but there is some concern that without appropriate treatment he may have a deterioration of his depressive and anxiety symptoms.

Mr Daley is also at risk of further worsening of his alcohol abuse and the development of the pattern of alcohol dependence without treatment.

With treatment Mr Daley may have remission from both his adjustment disorder and alcohol abuse within a six-twelve month period.

Without treatment Mr Daley’s injury related psychiatric conditions may persist beyond this period for a minimum of a further two-five years.”

16. [16]
    It does need to be noted that the material relied upon by the applicant does not contain any particularly recent medical assessments or reports. That may be related to the difficulties and delays that have occurred in respect of completing service of the application and materials on each respondent. However, and whatever may be the reason for that, the available material is referred to a considerable period after the commission of the offence and there is sufficient material before the Court to enable an appropriate assessment of the applicant’s entitlements within the constraints of the applicable legislation.

Discussion

17. [17]
    The applicant points to the approach endorsed in Riddle v Coffey^[8] as being to calculate and add together the appropriate amounts of compensation from the number of injuries arising from a single episode.

18. [18]
    As the applicant also correctly submits, this may include an allowance for mental or nervous shock, which requires identification of an “injury to health, illness, or some abnormal condition of mind or body over and above that of normal human reaction or emotion following a stressful event”^[9] and, as has also been previously noted, “‘mental or nervous shock’ is a wider term than psychiatric injury or disorder”.^[10]  In this regard the applicant relies upon the diagnosis of Dr Mungomery of an adjustment disorder with mixed anxiety and depressed mood of initially moderate severity then reducing to minor severity with an ongoing and related condition of alcohol abuse of moderate severity.  A victim of a personal offence who suffers a consequential and recognisable psychiatric injury, suffers “nervous shock” pursuant to COVA.^[11]

19. [19]
    Accordingly, the applicant claims pursuant to item 32 “mental or nervous shock (moderate)” and suggests an award at the top of the applicable range of 10– 20% and that is an appropriate claim.

20. [20]
    The assessment of the combination of physical head injuries invokes the requirements noted above, as to the need to consider issues of overlap between categories of injury allowed under the schedule and to make necessary adjustments, having regard to the respective maxima allowed.

21. [21]
    The applicant specifically recognised this in respect of the injuries to his nose. He points to item 3 “fractured nose (no displacement)”, which provides a range of 5– 8% and item 27 “facial scar (minor/moderate)”, which provides for a range of 2-10%.  In relation to the scaring, it must be noted that there is no particular evidence as to the impact of that scaring over and above the description of there being a residual scar as a result of the laceration to the nose which required five stitches.  The applicant suggests a single award in respect of these aspects of his injuries and suggests a total amount of 10%.  However, the applicant also claims a further amount suggested at 5%, under item 2 “bruising/laceration (severe)” and where the range is 3-5%.  Having regard to the allowance to be made in respect of other significant injuries which may have had an associated injury in the nature of bruising, an appropriate response to the collection of injuries relating to the applicant’s nasal area is to allow 7% under item 3, and 6% under item 27.

22. [22]
    The applicant claims under item 6 “facial fracture (minor)” in respect of the blow out fracture of the medial wall of his right orbit. The scheduled range is 8-14% and the applicant suggests 10%. This is itself an obviously significant injury and although, occurring in close proximity to the applicant’s right eye, also a separate consequence to those discussed before, in respect of that eye. Having regard to the somewhat different approach that I have adopted to the adjustment of awards under the separately applicable items, I will allow 14% under item 6.

23. [23]
    I also accept that it is appropriate to have regard to item 10 “fractured skull/head injury brain damage (minor/moderate)” which provides for a range of 10–25%, in respect of the applicant’s closed head injury with right temporal lobe contusion and cerebral petechil haemorrhage. The applicant suggests an award of 10% in circumstances where there is no evidence of any serious cognitive impairment, and that is an appropriate amount.

24. [24]
    Finally, the applicant claims pursuant to item 29 “loss of vision (one eye)”. The maximum provided for this item is 70% and the applicant suggests 50%. However, I am not satisfied that that would be an appropriate award. On the one hand this is to be rightly regarded as a serious and significant consequence of the offence committed against the applicant and all the more so, because he has been inflicted with this injury including some reduction or impairment in his vision in his right eye at such a young age. Further, the likelihood of a need for cataract surgery with replacement of the natural lens and a risk of developing secondary glaucoma also need to be recognised. However it also needs to be recognised that the loss of vision is in the nature of blurring, as a result of the post-traumatic cataract which is assessed as a 5-10% reduction in vision, with symptomatic reaction to glare. An appropriate award under item 29 would be assessed at 25%.

Conclusion

25. [25]
    There is no behaviour of the applicant that may have contributed, directly or indirectly, to his injuries and that may be considered pursuant to s 25(7) of COVA.

26. [26]
    Accordingly, the summary of the awards to be allowed in reference to the individual items in Schedule 1 of COVA is:

Order

27. [27]
    Pursuant to s 26(5) of COVA, a single compensation order may be made against more than one convicted person and pursuant to s 26(6)(b) that order may provide for joint liability of more than one convicted person for an amount payable under the order. Having regard to the joint nature of the involvement of the respondents in the attack on the applicant and by which his compensable injuries were inflicted, that is the appropriate approach.

28. [28]
    I order that the respondents are jointly liable to pay the applicant the sum of $61,500.00 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995, for injuries sustained as a result of the offences committed on the applicant by the respondents and in respect of which they were respectively convicted and sentenced on 12 August 2005 and 9 May 2005.