Vanderboon v Yeomans[2012] QDC 244

DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application for criminal compensation pursuant to s 24 Criminal Offence Victims Act 1995.  The applicant’s date of birth is 1 December 1984.  At the time of the relevant offence he was aged 22 years.  He is now aged 27 years. The respondent to this application was aged 22 years at the time the offence was committed and is now aged 28 years.  The relevant offence (grievous bodily harm) was committed on 28 November 2007.  The respondent was sentenced to imprisonment for four years in respect of this offence.  A parole eligibility date was set at 30 January 2010.

2. [2]
   The Criminal Offence Victims Act 1995 was repealed by the Victims of Crime Assistance Act 2009 which commenced on 1 December 2009.  Chapter six of the latter Act deals with repealed and transitional provisions.  Section 155(1) of the Victims of Crime Assistance Act 2009 provides that where a conviction happens before commencement, a person may apply to the Court for an order for criminal injuries compensation if s 154(1)(a)(i) applies to the person.  It may be accepted that, had the Victims of Crime Assistance Act 1995 not commenced, the applicant could have applied to the Court for compensation under the Criminal Offence Victims Act 1995.  Section 167(2) of the Victims of Crime Assistance Act 2009 provides that if a person has applied to the Court for an order for compensation under the old scheme, then the Court must hear and determine the application under the repealed provision. 

3. [3]
   The respondent was convicted and sentenced on 29 June 2009. It is apparent therefore that the conviction occurred prior to the commencement of the Victims of Crime Assistance Act 2009 and that the provisions of s 155(1) of that Act have been satisfied. 

4. [4]
   Section 154 of the Victims of Crime Assistance Act 2009 provides as follows:

1. This division applies if –

1. a)
   a person could have, if this chapter had not commenced, applied to a court for an order requiring the payment of compensation for injury suffered because of a personal offence committed before the commencement, under –

1. i)
   section 24 of the repealed Act; or

2. ii)
   section 663B of the repealed Criminal Code chapter; and

2. b)
   at the commencement, the person has not made an application under a provision mentioned in paragraph (a)(i) or (ii) for the injury.

5. [5]
   Section 24 of the repealed Criminal Offence Victims Act 1995 provides that if ‘the convicted person’ is convicted on indictment of a personal offence the person against whom the personal offence was committed may apply to the Court for an order that the convicted person pay compensation for injuries suffered because of the offence.

6. [6]
   It may be accepted, then, that the applicant is a person who could have applied under s 24 of the repealed Criminal Offence Victims Act 1995 by reason of the fact that he is the victim of a personal offence committed against him by the respondent who was convicted on 29 June 2009 in the District Court.  Section 154(1)(a)(i) of the Victims of Crime Assistance Act 2009 is satisfied.

7. [7]
   His Honour Judge Robin QC ordered on 10 April 2012 that leave be given to the applicant to dispense with the requirement of serving the application on the respondent.  His Honour further ordered that the applicant be granted leave pursuant to r116 of the Uniform Civil Procedure Rules 1999 to serve the Queensland Department of Corrective Services by way of substituted service.  Service was effected in accordance with His Honour’s order.

8. [8]
   A further issue arises in relation to continuation of these proceedings after a period of delay. Rule 389 of the Uniform Civil Procedure Rules 1999 states:

1. 1)
   If no step has been taken in a proceeding for one year from the time the last step was taken, a party who wants to proceed must, before taking any step in the proceeding, give a month’s notice to every other party of the party’s intention to proceed.

1. 2)
   If no step has been taken in a proceeding for two years from the time the last step was taken, a new step may not be taken without the order of the Court which may be made either with or without notice.

2. 3)
   For this rule, an application in which no order has been made is not taken to be a step.

9. [9]
   In this application r 389(2) is relevant, the application having been filed 23 November 2009, and the Court’s leave is sought to continue with the application. In Tyler v Custom Credit Corp Ltd & ors [2000] QCA 178 the Court of Appeal held that the Court’s discretion in deciding whether to give leave to proceed under r 389 is not to be fettered by rigid rules.  Atkinson J (with whom McMurdo P and McPherson JA agreed) identified a number of factors which a court will take into account:

1) how long ago the events alleged in the statement of claim occurred and what delay there was before the litigation commenced;

2) how long ago the litigation was commenced or causes of action were added;

3) what prospects the plaintiff has of success in the action;

4) whether or not there has been disobedience of court orders or directions;

5) whether or not the litigation has been characterised by periods of delay;

6) whether the delay is attributable to the plaintiff, the defendant, or both the plaintiff and the defendant;

7) whether or not the impecuniosity of the plaintiff has been responsible for the pace of the litigation and whether the defendant is responsible for the plaintiff’s impecuniosity;

8) whether the litigation between the parties would be concluded by the striking out of the plaintiff’s claim;

9) how far the litigation has progressed;

10) whether or not the delay has been caused by the plaintiff’s lawyers being dilatory.  Such dilatoriness will not necessarily be sheeted home to the client but it may be.  Delay for which an applicant for leave to proceed is responsible is regarded as more difficult to explain than delay by his or her legal advisors;

11) whether there is a satisfactory explanation for the delay;

12) whether or not the delay has resulted in prejudice to the defendant leading to an inability to ensure a fair trial.

10. [10]
    In her affidavit sworn and filed on 9 August 2012, Rita Derek, solicitor for the applicant, states that on 15 March 2010 this application was adjourned to a date to be fixed so that the applicant could undertake further medico-legal assessment of his injuries, and so that the respondent could be located and served. The applicant subsequently attended upon Dr Scott Campbell and Dr Jacques de Hann to obtain a medico-legal report in relation to his injuries. Once the reports were completed there was a substantial delay as the applicant lacked the funds to pay for the reports and there was further delay in obtaining litigation lending. On or about January/February 2011 Ms Derek received a medico-legal assessment from Dr Scott Campbell dated 26 March 2010. On or about 19 September 2011 Ms Derek received a medical report from Dr Jacques de Hann dated 19 September 2011. On or about 9 December 2011 Ms Derek received further medico-legal evidence from Dr de Hann dated 9 December 2011. On 17 February 2012 Ms Derek wrote to the Prisoner Locations Department requesting the location of the respondent. Subsequently Ms Derek was advised that the respondent was no longer incarcerated. On 20 February 2012 Ms Derek arranged for a solicitor from her office to attend upon the Electoral Roll Commission offices at Southport to conduct a search of the electoral roll in an attempt to locate the respondent’s address.  The respondent could not be located on the electoral roll.  On 10 April 2012 orders were made by Judge Robin QC granting the applicant leave to serve the Queensland Department of Corrective Services by way of substituted service on the respondent.  In these circumstances the applicant seeks leave pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 to take a step in this proceeding.

11. [11]
    In the circumstances outlined in the affidavit of Ms Derek, I am of the view that the delays in this litigation have been satisfactorily explained. In particular, any delay caused by the applicant himself has to be assessed in the context of the effects upon him of the unlawful conduct of the respondent. In any event, I am unable to discern any prejudice to the respondent as a result of the delays in bringing this application. I note from the affidavit of Allison Maree Campbell, filed 10 August 2012, that on 16 May 2012 a letter was sent to the Queensland Department of Corrective Services enclosing the orders made by Judge Robin QC on 10 April 2012 together with the affidavit of Katherine O'Sullivan sworn 15 March 2010 and that of Ms Derek, filed 3 April 2012.  Furthermore, a letter dated 9 August 2012 was sent to the Queensland Department of Corrective Services enclosing a copy of the application to proceed filed 9 August 2012 together with the affidavit of Ms Derek filed on the same date.  It appears that all relevant material has been available to the respondent and there is no suggestion that any witness is unavailable for purposes of cross-examination notwithstanding that the offence occurred almost five years ago.

12. [12]
    In the circumstances outlined in the previous paragraph I accept that the applicant’s solicitor has taken all reasonable steps to prepare this matter for hearing and that it is appropriate for the Court to grant the applicant leave to continue with the application.

13. [13]
    The facts the subject of this application as outlined by the prosecutor at the sentencing hearing were as follows:

Mr Johnson: Thank you.  On the 28^th of November 2007 the complainant had stayed home from work as he had a cold.  Later that day he had walked from his residence at Parkwood to Labrador with a friend.  They consumed some alcohol and consumed some more alcohol at a park in Labrador.

They continued walking along the main street at Labrador, past McDonald’s towards North Street, Southport, which is on the very outskirts of Southport.  At approximately 10pm they had nearly made it to North Street past a two storey brick house on a corner that faces both North Street and Marine Parade.

The complainant stopped and said to a female out the front of the house or the complex, “How’s your night going?” A male, who was the accused, came out of the building and an argument ensued between the complainant and the accused.  Also, the accused stated that some comments were made that were directed at his female companion.

The argument lasted a few more minutes, then the female and the male went back into the building.  At that stage there, your Honour, the complainant threw a beer bottle at the residence of the male and female and it smashed.  The complainant and his companion continued to walk along the footpath or Marine Parade.

The friend of the complainant, who was named Clarke, had then observed the male who had been at the residence, being the accused, come running up behind the complainant carrying what appeared to be a steel rod.  That steel rod was described by witnesses as a metal pole with a plastic handle and some tape on it.  Indeed, in his record of interview the accused described the implement as a solid bar about two foot long and weighing two kilograms.

He, himself, in his own record of interview described striking the complainant on the forehead with the pole.  He used the words; he described the complainant just dropping in front of him, going straight down.  His legs buckled under him.  That was at pages eight and nine of the record of interview.  He also stated that the complainant attempted to strike him with a right punch at the same time with a simultaneous action.  He struck back with the pole.

The friend of the complainant, Clarke, also observed that the male accused hit the complainant in the front of the complainant’s head with the steel rod.  He said that the male had used a force of both hands on the steel rod on the complainant.  And his words were, “The complainant dropped straight to the ground.” In fact, Clarke then tried to help the complainant stand, but he fell back down.  The complainant did not respond to anything that Clarke was saying.  Clarke then used his mobile phone to call an ambulance.’

14. [14]
    Defence counsel included in her submissions at the sentencing hearing the following remarks:

The facts have obviously been outlined to your Honour.  If I could just spend a short moment dealing with the statement of a woman called Lee Jolae.  She was – it was her unit that my client was at when this incident occurred.

She told the police that she went out the front of the unit to take some rubbish out to the wheelie bin and she saw two guys being the complainant and his friend, walking along Marine Parade.  She put the rubbish into the bin and then walked back to her unit.

She was standing in front of the front door and she saw them walk past and heard them arguing amongst themselves.  She saw the bigger of the two males start to throw the local newspapers onto the lawn in front of her unit.  She told them to take it around the corner and to piss off.  The bigger male yelled back and told her to fuck off and then called her a slut.

After the male called her a slut, she saw my client come out of the unit and was standing next to her at the front door, and he yelled at the two males, and told – asked them, “Why don’t you fuck off?”  He then saw – sorry, she then saw the bigger male walk back towards the units, stand at the letter boxes at the front and yell back to my client, “If you want to have a go, bring it on”.

She then saw my client walk to the letter boxes and up to the bigger male and stand in front of him.  There was about a metre between them and the bigger male, who was described as being about four or five inches taller than my client.  His friend then approached him and then tried to get him to leave.  She went to my client and got him to go inside.  They both started to walk in their separate directions.

As they were walking away, my client and Ms Jolie were walking back to the unit.  The bigger male yelled out, “Fucking pussy” or words to that effect, and she then said to my client, “Come on, let’s go inside”. They went inside; they closed the screen door; about the sit down on the couch when they heard something crash into the screen door, and what she thought sounded like glass smashing, and then she was covered in beer and slivers of glass.  She opened the screen door, saw the glass from the beer bottle all over the porch, and someone from the direction where they two males had been yelled out, “Youse are fuckwits”.

She then saw my client walk past her.  He was holding the metal pole that your Honour’s seen.  It was – that was a pole that was in her unit, and he then walked out and there was a confrontation your Honour’s heard about.  My client returned and Ms Jolie started to clean up the glass. 

My client returned and told her that old mate, being the bigger male, threw a punch and he hit him, or he said he cracked him.  He then – my client then asked her to go around the corner and to check on the complainant as he fell and hit his head on the footpath.  That’s the context in which this offence was committed.

15. [15]
    In his report of 26 March 2010 Dr Scott Campbell, neurosurgeon, noted that some two years and four months since the incident the applicant continues to complain of cognitive deficits, chronic headaches and reduced hearing in the left ear. The cognitive deficits manifest as poor short term memory and decreased concentration. The poor short term memory causes forgetfulness of names, appointments, conversations, yesterday’s events and passwords. The applicant misplaces personal items such as his keys, wallet and mobile phone. He has difficulty learning new information and multi-tasking. The headaches occur most days of the week and rate up to 8/10 on the Visual Analogue Scale. The headaches cause decreased concentration. When the headaches are severe the applicant has to cease the activity he is performing and lie down in a quiet, dark room and take painkillers. The left ear deafness is associated with ringing of the ear. He has difficulty conversing in a crowded room and talking on the telephone. He has the television volume up when watching it. Neurological examination revealed no cranial nerve, long tracked or cerebellar signs. On testing the short term memory the applicant could recall five of six facts after five minutes. Serial 7 subtraction was satisfactory. Mini MSQ testing was normal. A CT brain scan dated 28 November 2007 was reported as showing a linear base of skull fracture, depressed left occipital skull fracture, underlying small extradural haematoma and traumatic subarachnoid blood.  The applicant’s prognosis  with regard to performing his duties as a pest technician is restricted as a result of the head injury sustained during the incident.  Dr Campbell considers that it is likely that the applicant will demonstrate decreased efficiency at work in the future whatever job he is performing.

16. [16]
    Dr Campbell confirmed that the current symptoms of cognitive impairment, headaches and left ear deafness are consistent with the injuries sustained by the applicant. He noted that the majority of the recovery occurs in the first few days and weeks after the injury occurred. Thereafter recovery declines with time. Dr Campbell considers that at two years and four months post-injury the applicant has reached the point of maximal medical improvement and that despite appropriate treatment the applicant’s symptoms have become chronic and are now unlikely to resolve. Dr Campbell assesses a 10% whole person impairment with respect to the cognitive deficits, a 3% whole person impairment for the posttraumatic headaches and recommended that an ENT specialist assess the applicant’s traumatic left hearing loss. The impairment is seen as likely to be permanent.

17. [17]
    Dr Campbell noted that the applicant no longer has the motivation to maintain a high level of fitness or to socialise. The prospect of ongoing pain and loss of independence is psychologically distressing. There is no treatment for the cognitive impairment except facilitating memory with the use of lists, diaries, prompts and routine behaviours. The headaches are managed with painkillers and rest and there is no further treatment available.

18. [18]
    Dr Jacques de Hann, consultant ENT surgeon, in his report of 19 September 2011 noted that according to the hospital history the applicant had a linear fracture of the temporal bone, with a CSF leak from the left external auditory canal. On 16 February 2009 the applicant had a left ear exploration and insertion of a prosthesis replacing the malleolus and head of incus. On the date of the report (which was also the date of examination of the applicant by Dr de Hann) the applicant was found to have a very good hearing result after the left ear surgery. However, some high frequency sensorineural hearing loss was noted. Dr de Hann recorded that the applicant still complained of impaired hearing in the left ear under all circumstances. This disability on history was said to sound in excess of what the Dr would expect from the pure tone audiometry.

19. [19]
    Other factors, possibly ENT related, were identified by Dr de Hann as including the complaint of frequent severe headaches, which are fluctuant but generally not improving and severe tinnitus which the applicant finds intrusive. The applicant complains that the tinnitus impairs his ability to communicate and which is said to be at times so bad that it is objectively painful. Dr de Hann felt that the applicant’s headaches should be better dealt with by a neurosurgeon.

20. [20]
    On examination Dr de Hann noted that the applicant’s left tympanic membrane is scarred, intact and mobile with a prosthesis visible through the tympanic membrane. The cranial nerves were intact and no other objective signs of any residual ENT pathology were discerned as a result of the incident. Dr de Hann felt that the applicant had a slightly increased chance of developing a CSF leak in the future and a slightly increased chance associated with this of developing intracranial complications, such as meningitis. This was said to be possibly more theoretical than practical.

21. [21]
    The findings and opinions of both Dr Campbell and Dr de Hann are consistent with the findings of Dr Lee Yang, neurosurgical registrar at the Gold Coast Hospital. Dr Yang confirmed that the applicant presented to the Emergency Department of the Gold Coast Hospital on 29 November 2007 stating that he had been hit on the head with a single blow, possibly by a baseball bat. He had no loss of consciousness. On examination Dr Yang noted the following injuries:

a depressed skull fracture to the left temporal occipital parietal area involving mastoid air cells.  There was a small 1-2 mm thick extradural haematoma on the CT scan with associated pneumocephalus.  He further developed a minor CSF leak from his left ear which resolved spontaneously during admission.  He also had right third metatarsal head fracture.  The applicant was treated conservatively with supportive care at the GoldCoastHospital.  He recovered well and was discharged on 4 December 2007.

22. [22]
    A psychological treatment report was prepared by Dr Tayne Garforth, psychologist, dated 18 May 2009. Dr Garforth reported that following an assessment completed on 27 September 2008 the applicant was experiencing depressive symptoms at a level exceeding 90% of the ‘normal’ Australian population. A review, completed on 29 November 2008, showed that the applicant was within the normal range for depression, anxiety and stress. A cognitive behavioural treatment program aimed primarily at alleviating the depressive component of the applicant’s condition was commenced in order to assist him to manage his post traumatic stress symptoms with increased coping skills, emotional adjustment and cognitive reprocessing techniques. The applicant had described a number of post traumatic stress symptoms arising from the incident characterised by intrusion, avoidance and hyper arousal. The program was successful in that the applicant responded well to treatment and his initial symptoms had all improved at the completion of treatment with a near return to pre-morbid levels of functioning. It should be noted that the application for criminal compensation does not include a component for mental or nervous shock.

23. [23]
    I accept the contents of the reports of Dr Campbell, Dr de Hann, Dr Yang and Dr Garforth. There is no affidavit before me from the applicant himself.

24. [24]
    The extradural haematoma is to be assessed under Item 2 of Schedule 1 (compensation table) to the Criminal Offence Victims Act 1995. Item 2 refers to bruising/laceration which may be described as severe and permits an assessment at between 3%-5% of the scheme maximum which remains at $75,000.  Having regard to the evidence of Dr Yang I am of the view that the bruising suffered by the applicant should be assessed at 5% of the scheme maximum which yields the sum of $3,750.  The fractured skull sustained by the applicant is to be assessed under item 10 of the compensation table which refers to ‘fractured skull (brain damage – minor/moderate)’ and which permits an assessment of between 10%-25% of the scheme maximum.  The evidence of Dr Campbell satisfies me that the extent of the applicant’s brain damage is more appropriately characterised as moderate rather than minor.  This injury should be assessed at 25% of the scheme maximum which yields the sum of $18,750.  The loss of hearing in the applicant’s left ear falls for assessment under item 35 of the compensation table which permits an award at between 2%-20% of the scheme maximum.  The evidence of Dr de Hann would suggest an award at the lower end of this range namely at 2% of the scheme maximum.  This yields a further $1,500.  The total percentage is 32% of the scheme maximum or $24,000. 

25. [25]
    In my sentencing remarks I noted that ‘to some extent, the complainant in the grievous bodily harm charge was the author of his own misfortune.  His conduct was not only unpleasant, it was criminal. Having been unpleasant and insulting to your female companion, he chose to throw a bottle of beer at the front door of the residence where you were situated with the female companion.’  The conduct of the applicant in my opinion materially contributed to the injuries he sustained as a result of the blow to the forehead inflicted by the respondent.  The award should be reduced by 10% to reflect this aspect of the matter.  Accordingly, the total amount of compensation to be awarded should be reduced by $2,400 resulting in an award of $21, 600.

26. [26]
    I order that 1) the applicant be granted leave pursuant to r 389(2) of the Uniform Civil Procedure Rules 1999 to proceed with his application for criminal injuries compensation and 2) that the respondent pay to the applicant the sum of $21,600 by way of compensation pursuant to s 24 of the Criminal Offence Victims Act 1995 for injuries sustained as a result of the offence which led to the conviction of the respondent on 29 June 2009 upon indictment under the Criminal Code Act 1889.