Atkinson v McCallum

[2002] QDC 328

DISTRICT COURT OF QUEENSLAND

CITATION:	Atkinson v McCallum [2002] QDC 328
PARTIES:	CHRISTOPHER PETER ATKINSON Applicant v GARY WAYNE McCALLUM Respondent
FILE NO:	3218/02
DIVISION:	Criminal jurisdiction
PROCEEDING:	Application
ORIGINATING	Brisbane
COURT:
DELIVERED ON:	10 December 2002
DELIVERED AT:	Brisbane
HEARING DATE:	18 October 2002
JUDGE:	O’Sullivan DCJ
ORDER:	I order the respondent to pay to the applicant by way of criminal compensation the sum of $24,750.00
CATCHWORDS:	Criminal compensation: head injury; loss of smell
COUNSEL:
SOLICITORS:	Collas Moro Ross for the Applicant

1. This is an application for criminal compensation by Christopher Peter Atkinson, a 19 year old fork lift driver, following the conviction of the respondent Gary Wayne McCallum of assault occasioning bodily harm on 18 March 2000.

2. The respondent hit the applicant with a Brisbane City Council tree stake following an altercation and various verbal exchanges involving the applicant, the respondent and others.

[3] The applicant was hit on the back of the head and was rendered unconscious for
some short time. He sustained a 6cm laceration to the occipital area.

1. The applicant was admitted to Logan Hospital with what was noted as a “serious head injury” and concussion. A CT scan and an EEG revealed no particular injury capable of diagnosis. The applicant was discharged after three days.

2. When the applicant saw a general practitioner three weeks after the incident he was complaining of very bad headaches, being off balance, bad dizzy spells and one blackout whilst at the wheel of a car.

3. The applicant was referred to a neurologist and a report from Dr Boyle dated 13 December 2001 discounts epilepsy and expresses the opinion that the applicant “was suffering primarily from post-concussion syndrome with some superimposed syncopal episodes”.

4. Dr Scott Campbell, neurosurgeon has provided two reports, dated 15 April 2002 and 12 September 2002. At the time of the examination on 12 April 2002 the applicant was suffering from decreased short term memory and concentration, loss of sense of smell and hypersensitivity over the occipital area to “touch and bumps”. Dr Campbell diagnosed a head injury resulting in organic brain dysfunction, traumatic damage to the olfactory nerves as a result of the contre coup head injury, and sensory nerve damage due to scalp laceration. In his more recent report Dr Campbell diagnoses a 6% whole person impairment, 3% due to decreased short term memory, 2% to the loss of sense of smell and 1% to sensory nerve damage to the scalp.

5. Mr Stoker, clinical psychologist, provided a report dated 20 June 2002. He states that the behaviour of the applicant after the assault, his psychological history and Mr Stoker’s clinical testing are consistent with a psychological diagnosis of post traumatic stress disorder with delayed onset (diagnostic and statistical-manual – American Psychiatric Society DSM – IV). He also diagnosed a post-concussional disorder (DSM – IV). Mr Stoker opined that “On a 7 point scale the applicant’s degree of psychological pain and suffering was around 5”. The applicant needed 25- 30 sessions of cognitive behavioural therapy. “The…