Bain v Iefata
[2000] QSC 7
•21/01/2000
SUPREME COURT OF QUEENSLAND
Registry: Brisbane
Number: S 9920 of 1999
Before Justice Wilson
[Bain v Iefata]
Applicant: GREGORY JOHN BAIN
AND
Respondent: IUTA IEFATA
REASONS FOR JUDGMENT : WILSON J
Delivered: 21 January 2000
CATCHWORDS: CRIMINAL LAW – COMPENSATION – unlawful wounding with intent to do grievous bodily harm – determination of entitlement to compensation under Criminal Offence Victims Act 1995 – assessment of compensation according to statutory compensation scheme
Criminal Offence Victims Act 1995
Solicitors: Gregg Lawyers for the applicant
Hearing date: 19 January 2000
This is an application by Gregory John Bain for criminal compensation pursuant to s 24 of the Criminal Offence Victims Act 1995.
On 8 February 1999 Iuta Iefata pleaded guilty to the charge that with intent to do grievous bodily harm he unlawfully wounded the applicant on 19 January 1997. Iefata was subsequently sentenced to a term of imprisonment of three years and 26 weeks, to be suspended after one year, with an operational period of five years.
The applicant was a bouncer at The Gig nightclub where the respondent was a patron. A fracas broke out. Iefata hit the applicant on the head with a metal bar and also inflicted two other blows, one on the arm and one on the hand. The applicant sustained deep lacerations to his head and a momentary loss of vision. He was taken to the Emergency Department of the Royal Brisbane Hospital where he was treated. X-rays revealed no skull fracture and no intra-cranial haemorrhage. Twenty stitches were inserted in his head.
I note that earlier, on 9 January 1997, the applicant had been assaulted at work. He had been kicked and punched in the head and sustained bleeding in both retinas, lacerations to the right eye and diminution in vision. However, he had been able to return to work by 16 January 1997.
The Criminal Offence Victims Act provides a scheme for the payment of compensation for injury caused by an indictable offence committed against the person of the applicant: s 19. “Injury” is defined in s 20 as bodily injury, mental or nervous shock, pregnancy or any injury specified in the compensation table which is a schedule to the Act or prescribed under a regulation. Compensation under the Act is intended to assist the applicant, but not to reflect the compensation to which he or she may be entitled under common law or otherwise: s 22. The court may not award a total of more than the “scheme maximum,” which is $75,000. Various categories of injuries are set out in the compensation table together with the percentage of the scheme maximum which may be awarded for each: s 25, Schedule 1.
The applicant, through his solicitor, sought the following compensation:
1. Bruising/laceration severe 5% $3,750
[to front scalp]
2. Bruising/laceration moderate 3% $2,250
[to posterior occiput]
3. Fractured skull – minor/ 15% $11,250
brain damage moderate
4. Mental or Nervous moderate 15% $11,250
shock
5. Loss of Vision minor 2% $1,500
Totals 40% $30,000
The applicant was born on 19 December 1964. He was educated to Grade 12, always being placed in the upper third of his class academically. After leaving school he worked as a security officer, storeman and factory worker. For 10 years he was a security manager and tour manager of rock bands. Subsequently he was a security officer and gym owner. He enjoyed athletics training and was always a body builder and worked out in gyms. In 1995 he was diagnosed with cardiomyopathy.
He is currently on a disability pension and working only part time as a security officer.
I have had put before me a number of medical reports:-
1. Royal Brisbane Hospital Emergency Department records
2. Penelope Seeto, an optometrist in the employ of Ian Elcock
16 June 1997
3. Maureen Field, neuro psychologist
15 November 1999
4. Edwin S. Young, psychiatrist
12 January 2000.
The applicant complained to Dr Field of a change in his sense of smell and taste, vision problems, headaches and migraines, memory and concentration problems and mood disturbance. Her testing revealed that he was probably previously of average to high average intelligence although he is now functioning at the average range. He had neuro psychological deficits consistent with impairment in the right hemisphere of the brain, probably the right frontal region. He may have a suffered a post concussion syndrome.
According to Dr Young he suffers from depression, anxiety, panic attacks, agoraphobia and irritability. He has features of post traumatic stress disorder, but not enough of them to satisfy such a diagnosis. In Dr Young’s opinion he should receive ongoing psychiatric treatment. He has made most of the recovery he is likely to make from his brain damage and there is virtually no prospect that he will make a full recovery from the disabilities due to it. He can be expected to improve as regards depression and agoraphobia, but the extent of the improvement cannot be predicted. His neuro psychological deficits may make psychological treatment difficult. He will need the continued care and support of his wife. He will be unable to carry out his normal work duties for the foreseeable future and it is likely he will never be able to carry out his normal work duties except in a limited part time fashion.
On the material before me I am not satisfied that his vision problems are the result of the wounding by Iefata rather than the earlier incident.
Although he sustained no fracture of the skull, he did sustain a brain injury. Accordingly I consider it would be appropriate to award compensation under Item 10 in the schedule to the Act. See s 25(6).
I do not propose making more than one award for bruising/laceration.
I have assessed compensation as follows:-
1. Bruising/laceration severe 5% $3,750
2. Brain damage minor/ 15% $11,250
moderate
3. Mental or Nervous moderate 15% $11,250
shock
Totals 35% $26,250
I order that $26,250 be paid by Iuta Iefata to the applicant Gregory John Bain because of injury sustained on 19 January 1997.
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