DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The respondent, Sherri-Ann Tanner, pleaded guilty in the Beenleigh District Court to one count of assault occasioning bodily harm in respect of the applicant Patricia Sharleen Ramaiya. The respondent was sentenced to 12 months probation with no conviction recorded.^[1]

Leave to proceed

2. [2]
   The application was filed on 29 January 2010 by the applicant’s former solicitors, who it appears took no steps to progress the proceedings. The file was taken over by Legal Aid Queensland in October 2011^[2] and the matter then proceeded promptly to hearing.  In the light of the factors referred to in Tyler v Custom Credit Corp Ltd & Ors [2000] QCA 178, I am satisfied that it is appropriate to grant leave to proceed pursuant to Uniform Civil Procedure Rules (UCPR) r. 389.

Facts

3. [3]
   The applicant and the respondent were at the time of the offence (20 September 2007) neighbours in Kingston.  There was a history of “bad blood” between them.  The applicant was having a party and at some stage during the evening, she was outside her residence.  The respondent then became involved in an altercation with the applicant, punching her a number of times, one punch connecting with the applicant’s face, causing bruising below her left eye.  The applicant at one stage dropped to her knee in an attempt to protect and defend herself, and suffered a cut to the knee which required stitches.^[3]

Injuries

4. [4]
   The applicant suffered bruising below her left eye, and a cut on the knee requiring stitches.^[4]

The Law

5. [5]
   The application in these proceedings was filed on 29 January 2010, subsequent 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.  The application was filed in accordance with the relevant transitional provisions of VOCAA ss. 154 and 155, and was brought in compliance with the repealed provisions of COVA s. 24.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]
   Ms Muirhead, who appears for the applicant, seeks compensation as follows:

1. Item 1 – bruising/laceration etc. (minor/moderate) – 1%-3%

The applicant suffered right-side bruising under her left eye, tenderness to the inferior orbital margins, a tenderness over the lateral aspect of the left ankle and a laceration to the right knee.  Ms Muirhead submits that an order of 2% of the scheme maximum ($1,500) should be made pursuant to item 1.  I accept this submission and accordingly I award 2% ($1,500) pursuant to item 1.

2. Item 27 – facial disfigurement/bodily scarring (minor/moderate) – 2%-10%

Dr Trevor Harris, Plastic and Reconstructive Surgeon, identifies that the applicant (relevantly) has “on the anterior aspect of the right calf … a scar measuring 4 cm by 2 cm that … has stretched, but is not keloid nor hypertrophic”.  Dr Harris did not consider (apart from some sensitivity in the area of the scar) that there was any other sensory damage and did not consider that the scar could be improved greatly by any further surgery, which carried risks of any further scar becoming hypertrophic or keloid.  He estimated “the impairment of the whole person” at 2%.^[5]  It is submitted that an order of 4% of the scheme maximum ($3,000) would be appropriate.  I accept the submission and accordingly award 4% ($3,000) pursuant to Item 27.

3. Item 32 – Mental or Nervous Shock (Moderate) – 10%-20%

Mr Peter Stoker, psychologist, diagnoses the applicant as suffering from post traumatic stress disorder (PTSD) as a result of the assault.  Mr Stoker also notes that the applicant has suffered from a borderline personality disorder as a result of abuse suffered in childhood, has been on a disability pension and has needed a carer for most of her life.  He describes the injury as reflecting “a mild to moderate degree of mental and nervous shock”. In my view an appropriate award in the circumstances would be 15% of the scheme maximum, namely $11,250.

Contribution

8. [8]
   Although there may have been some degree of mutuality in the events which led up to the assault, I do not consider that the applicant has contributed in any substantial way to her own injuries. Accordingly there should be no reduction for contribution.^[6]

Order

9. [9]
   I order that the respondent, Sherri-Ann Tanner, pay the applicant, Patricia Sharleen Ramaiya, the sum of $15,750.