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[2010] QSC 407
Supreme Court of Queensland
2010-10-29
Chesterman JA
Original judgment source is linked above.
[1] CHESTERMAN JA: On 9 November 2009 the applicant filed an application seeking compensation for injuries he sustained at the hands of the respondents on 15 June 2005. The application was made under the Criminal Offence Victims Act 1995 (the "COV Act") which was repealed on and from 1 December 2009 by the Victims of Crime Assistance Act 2009, the provisions of which now regulate applications for criminal compensation. Section 167 of the later Act provides that if a person has applied for compensation under s 24 of the COV Act, and the application had not been determined before 1 December 2009, then:
"(2) The court must hear ... and decide the application under the repealed provision."
[2] Section 24 of the COV Act applies if a person is convicted on indictment of a personal offence which is defined by s 21 to be an indictable offence committed against the person. By s 24(2) the person against whom the offence is committed may apply to the court before which the person was convicted for an order for compensation for injuries suffered in the commission of the offence.
[3] On 8 August 2006 both respondents pleaded guilty in the Supreme Court at Brisbane to a charge of doing grievous bodily harm to the applicant intending to do him grievous bodily harm. Both were sentenced to eight years' imprisonment with a declaration that each had been convicted of a serious violent offence.
"The 15th of June 2005 was a night on which a State of Origin football match was played. All concerned in this case ... witnesses ... accused and ... victims appear to have watched the game and consumed excessive amounts of alcohol. ...
... (the applicant), having watched the game and been drinking drank some more and then went to ... Browns Park in North Ipswich. Pates and some of his friends had also been drinking and were in the vicinity of the park at about mid-night. Three young people ... walked through the park and were spoken to, insultingly no doubt, by ... (the applicant) but nothing much seems to have happened.
Later Pates walked through the park also with two young women and one of the men, either Predo or (the applicant) or perhaps one other man who may also have been there, accosted them. He caught one of the women by the arm, he took a hat from one and made himself generally disagreeable. There seems to have been no real malice in what he did but it was no doubt annoying.
Mr Pates spoke to the man and told him to behave himself. The group then left. They went to Pates' home where his girlfriend claimed that one of the men in the park ... had accosted her sexually at a railway station ... some weeks earlier. ... there is no evidence at all ... that either Mr Predo or (the applicant) was involved in that approach to Mr Pates' girlfriend.
In any event Pates became ... incensed ... with the thought that one of the men in the park had been an assailant to his girlfriend. He armed himself with a steel bar. ... He gave (another man) a wooden table leg and, thus armed, they ... went back to the park.
In the meantime the accused Davidson and his cousin Ms Johnson - who had also been drinking and had also earlier watched the football game - walked through the same park and was spoken to by the men, Predo and (the applicant). It seems that they made some insulting remarks of a racial kind ... . One of them may have pushed or shoved Mr Davidson as he walked past. In any event nothing more happened.
These two people left the park where they encountered (the other man) and Pates on their way back armed with the iron bar and the wooden club. After a brief conversation ... the two (respondents) said that they would sort out the two men in the park and, with that obvious intent, went towards them. It seems that, when confronted, the two men apologised for their earlier bad behaviour but were nevertheless set upon by the (respondents) and assaulted most severely around the head ... .
Both received serious head injuries. Both were left unconscious on the ground and both (respondents) left, offering no assistance, and showing quite callous disregard for the injuries they had inflicted. ...
The attack ... was vicious and persistent. The (respondents) did not stop until the victims were lying unconscious on the ground. ... It is ... lucky that both men did not die.
The assaults were pre-meditated. The (respondents) ... armed themselves with weapons capable of causing terrible injuries. ... The two victims had no doubt behaved badly. ... But they constituted no threat to Davidson and he had left the park and got away ... when he decided to return armed, with Pates.
The same is true of Pates. He had even less reason to be annoyed with Mr Predo and (the applicant) than did Davidson. ...
Both Predo and (the applicant) were harmless and unarmed. They apologised for their behaviour when confronted, but were still bashed senseless."
[5] The applicant was seriously and permanently injured by the respondents' attack. He had lacerations to his scalp overlying a compound compressed skull fracture and underlying brain contusions. A sub-dural haematoma underlay a second skull fracture. His right ear was torn and he was bleeding from the nose. There were haematomas around both eyes. He was kept in hospital until 21 October 2005, a period of about four months. On 1 August 2005 he was transferred from the Ipswich Hospital to the Brain Injury Rehabilitation Unit at the Princess Alexandra Hospital.
[6] Dr Hazelton, the Director of the Brain Injuries Rehabilitation Unit, reported that the applicant sustained:
[7] On 20 June 2005 neurosurgery was performed to remove damaged brain tissue. The applicant was unable to breath naturally and a tracheotomy was undertaken to allow oxygen to enter his lungs.
[8] Postoperatively the applicant underwent intensive rehabilitation. He required the assistance of an occupational therapist, physiotherapist, dietician, speech pathologist and social worker. By the time of discharge he was independently mobile, continent and could communicate at a functional level though had difficulty with higher language function and had disrupted comprehension and memory. He had lost most of the vision in his left eye and substantial hearing in the right ear.
[9] Dr Harrison, ophthalmologist, reported on 31 March 2009:
"(The applicant) has suffered from a severe traumatic head injury, which has resulted in objective evidence of right traumatic optic neuropathy. The right eye has extremely poor vision, which is unlikely to improve significantly. ...
It is likely that the injury to the right optic nerve has arisen because of forces transmitted through the skull bones to the optic nerve as it enters the base of the skull through the optic canal. That is likely to have been caused by the ... assault."
[10] The consequences of the attack on the applicant have been very severe indeed. In his affidavit filed in support of the application the applicant said:
"9. ... I was discharged home into the care of my wife, who ... visited me daily in hospital but shortly after my discharge, she left.
At ... discharge ... I could manage showering and toileting but I didn't go out on my own. I was able to walk but I had some speech problems. ... I lost my vision in my right eye and I had loss of hearing in both my ears. I now have problems reading. I have had surgery to straighten my eye ... but it did not improve my vision.
I have been unable to work since the offence. I had been a mechanic prior to the offence. ... I now can't remember any of the skills I had as a mechanic. I have applied for jobs but have not kept any of them for more than a couple of hours because I can't remember what I am supposed to be doing.
I have terrible memory problems and in particular with my short term memory. I also have terrible problems with organisation. I cannot remember what is happening nor what I am supposed to be doing. I did not have these problems before the offence.
I am unable to live alone and I have lived in many places since the offence. I lived with my stepfather and mother for a year but then had to find somewhere else when (they) moved to Adelaide. I then moved in with my uncle and his girlfriend.
I constantly feel depressed. I regret that I lived after the assault and at times wish I was dead. I have not had any counselling.
I have problems sleeping. ... I am tired and I lack motivation. ...
I try to keep away from the area where the offence was committed and I no longer go into Ipswich. I am very fearful of further attack and I feel very vulnerable because of my problems with sight and hearing.
[11] Dr Barbara McGuire, psychiatrist, who examined the applicant for the purposes of the application, reported on 16 November 2009:
"At interview he was casually dressed. His hygiene was adequate but he was not well groomed. He came late having come by train. He said he didn't have an address for me and had Legal Aid not rung he would not have known where to go. He could name the Prime Minister but not the Premier of Queensland. He could not interpret proverbs. He could not give any significant information about news he had seen in the last couple of days. He performed serial sevens although he was initially very anxious. He exhibited a low mood and his affect was somewhat flat. He has a scar on his right temple which is a constant reminder and he doesn't like looking at it.
He suffers from posttraumatic stress disorder and depression and posttraumatic dementia. He suffers the first two to a severe degree and the third to a moderate degree."
[12] The applicant was also examined by Dr Robyn Murray, clinical psychologist, who reported on 16 June 2009:
"The configuration of the clinical scales suggests a person with significant tension, unhappiness, and pessimism. Although (the applicant) is quite distressed and acutely aware of his need for help, his low energy level, tension, and withdrawal may make him difficult to engage in treatment. ... The disruptions in his life have left him uncertain about his goals and priorities, and tense and pessimistic about what the future may hold. He reports difficulties concentrating and making decisions, and the combination of hopelessness, anxiety and stress ... may place him at increased risk for self-harm.
... it is likely that the assault is the event that continues to cause (the applicant) a degree of anxiety.
A number of aspects of his self-description suggest noteworthy peculiarities in thinking and experience. He is likely to be a socially isolated individual who has few interpersonal relationships that could be described as close and warm. ... His thought processes are likely to be marked by confusion, distractibility, and difficulty concentrating, and he may experience his thoughts as being somehow blocked or disrupted."
"(The applicant) has a severe impairment in cognitive functioning as a consequence of the assault. He also has symptoms consistent with a severe chronic post traumatic stress disorder.
Both conditions ... have persisted since the assault. His Dementia due to Brain Injury will persist indefinitely. With appropriate treatment, there may be a reduction in his post traumatic stress symptoms. However, he is likely to be left with some degree of residual anxiety ... .
...it is likely there has been some reduction in his global intellect as a result of his traumatic brain injury.
(The applicant) also exhibits impairment in specific areas of cognitive functioning that is in excess of what would be expected of someone with his overall level of intelligence. He was severely impaired in the following areas of cognitive functioning: reasoning, planning and problem solving, auditory and visionally working memory, verbal memory and verbal learning, visual memory, verbal fluency and information processing speed."
[14] Dr Murray noted the applicant had been a heavy drinker prior to the assault and that his history of heavy consumption of alcohol:
"may have resulted in some degree of cognitive impairment ... (although) it is not possible to accurately determine the extent to which prior alcohol use may be affecting his current cognitive functioning."
Dr Murray also thought that the applicant was of limited intellect prior to the assault so that "he would have been extremely vulnerable to further loss of intellect - such as that which resulted from the assault." The applicant's post traumatic stress disorder is entirely attributable to the criminal assault.
[15] The applicant has, obviously, suffered an injury as defined by s 20 of the COV Act. In making a compensation order the court is limited to the amounts and the mode of computation set out in s 25. No more than the prescribed maximum amount, $75,000, can be ordered. Section 22(4) provides that the maximum amount of compensation is allowed "for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness."
[16] Compensation is to be assessed by comparing the injuries suffered by the applicant with the injuries described in the compensation table set out in Schedule 1 to the COV Act.
[17] Applying the applicant's injuries as described in the evidence to the terms of the schedule produces the following result, which I take from the applicant's submission. I accept it is accurate.
a. laceration to right scalp overlying skull fracture.
b. Haematoma surrounding right eye and developing around left eye.
e. Braising to right shoulder and right side of abdomen.
The applicant suffered facial fractures with CT scan revealing bilateral maxillary sinus factures and pteiygoid plate fractures. The applicant's facial fractures were undisplaced and were managed conservatively.
a. Severe traumatic brain injury with his CT scan of brain revealing a right frontoparietal contusion with slight midline shift;
c. a comminuted depressed compound skull fracture of the right parietal
d. a base of skull fracture with sphenoid sinus fracture.
The applicant underwent a right temporary craniotomy and temporal lobectomy for removal of a large right temporal contusion. The removed skull bones were not replaced.
On the 1/8/05 Mr Webb came under the care of Dr Hazelton when he was admitted to the Brain Injury Rehabilitation Unit at PA hospital. Mr Webb underwent a comprehensive neurorehabilitation assessment and therapy program and was able to be discharged to the care of his wife
On 20 April 2007 the applicant underwent a right temporal cranioplasty with Ti Mesh
plate to repair his skull defect. On 31 July 2007 the applicant underwent fight lateral rectus resection and medial rectus recession as treatment of right exotropia and traumatic optic neuropathy secondary to the head injury that he sustained in 2005.
Clinical Neurophysiologist Robyn Murray states the applicant has suffered a severe traumatic brain injury as a result of the offence. Ms Murray further states that it is
also likely that the applicant was of limited intellect prior to the assault. Estimates of his premorbid intellectual functioning place
The applicant suffered right traumatic optic atrophy which has deprived him of the sight in his right eye.
Dr McGuire states that the applicant suffers from posttraumatic stress disorder and depression and posttraumatic dementia. Dr
McGuire is of the opinion that the applicant suffers PTSD and depression to a severe degree and the posttraumatic dementia to a moderate degree.
Audiology review by Princess Alexandra on 7 October 2005 demonstrated left mild to moderate high frequency sensorineural
loss and mild right conductive right hearing loss. From his notes it seemed that his hearing loss was treated conservatively. - report of Dr Chuah - Neurosurgical Registrar Princess Alexandra Hospital.
[18] The sum of the percentages of the scheme maximum comes to 184 per cent. By s 25(3) no more than the scheme maximum may be paid. Accordingly, the appropriate award is $75,000.
[19] Both respondents were parties to the personal offence from which the applicant suffered his injuries. As noted in the sentencing remarks each was equally culpable and each participated equally in the terrible beating administered to the applicant. The order for compensation should be made against both respondents. By s 26(8) no more than the scheme maximum can be ordered despite the order being made against more than one respondent.
[20] There was nothing in the applicant's behaviour which contributed to his injury so there is no warrant for reducing the compensation payable as s 25(7) allows. Any rudeness or boorishness on the applicant's part towards the respondents or their companions were spent well before the respondents armed themselves and set out to execute their criminal intention of doing grievous bodily harm to the applicant.
[21] The sole cause of the applicant's injuries was the criminal assault on him by the respondents.
[22] Accordingly I order that the respondents pay the applicant the sum of $75,000 by way of compensation pursuant to the COV Act 1995. I order that each of the respondents be separately liable for the payment to the applicant of $37,500 and that each of them be liable for the amount for which the other is separately liable.
Webb
Pates & Anor [2010] QSC 407