Beasley v Robertson

[2010] QDC 507

[2010] QDC 507

DISTRICT COURT
CIVIL JURISDICTION
JUDGE JONES
No 45 of 2009

GREGORY JOHN BEASLEY	Applicant
and
TODD MICHAEL ROBERTSON	Respondent
BRISBANE ..DATE 16/12/2010 ORDER

1-1

HIS HONOUR: This is an application for compensation pursuant

1

to section 24 of the Criminal Offence Victims Act 1995. That
Act was repealed with the introduction of the Victims of

Crimes Assistance Act 2009. However, under the transitional provisions of that Act, compensation is to be assessed under the Criminal Offences Victims Act because the originating	10
application was filed before the commencement of the new
legislation. The commencement date for the new legislation is
1 December 2009. The application was filed on 16 October
2009.
20
Pursuant to section 22 subsection 4 of the Criminal Offences Victims Act, the maximum amount of compensation provided for under the Act is reserved for the most serious of cases. The
amounts provided for in other cases are intended to be scaled
according to their level of seriousness. The scheme of the	30
Act and its associated regulations is that in respect of the classification of injuries identified, certain percentages are to be applied to a scheme maximum of $75,000 which is prescribed under section 2 of the regulations.
40
In this application the amount of compensation claimed or contended for is $56,250 made up as follows:
(a) Bruise and lacerations of ankle 5 per cent, $4,500.
50
(b) Bodily scarring to area of ankle 13 per cent, $9,750.

(c) Fracture to right ankle 13 per cent, $9,750.
(d) Fracture to right leg 13 per cent, $9,750. 1-2 ORDER 60

(e) Mental or nervous shock 30 per cent, $22,500.

The reasons will become more clear in a moment. I consider	10
the claim excessive and particularly, in respect of items (a), (c) and (d) where I consider that there are elements of double dipping.
If I could turn briefly to the facts of the case, the	20
applicant was born on 13 July 1959. He is now 51 years of
age. On 28 September 2006 the applicant was assaulted by the respondent. On 14 July 2008 the respondent pleaded guilty to two counts of assault occasioning bodily harm and was
sentenced to 12 months' imprisonment. The whole term of the	30
imprisonment was suspended forthwith with an operational period of 18 months.
The circumstances of the assault were that on 28 September
2006 the applicant was living with his wife, his son who was	40
26 years of age and five other younger children. On the
evening of that day the respondent and the applicant became involved what was essentially a neighbour dispute about the noise the applicant's children were making in the swimming
pool. A short time after that altercation, the respondent and	50

his son came to the applicant's door and when the door was
answered by the applicant's wife the respondent and his son
pushed past her, entered the applicant's house and thereafter
attacked him. 1-3 ORDER 60

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As a result of the attack, the applicant suffered bruising and

lacerations but the more significant injury was a fractured right ankle. The bruising predominantly was to the back of the head and upper back area. As Mr George described it, it	10
had the elements of a home invasion and would have been an extremely distressing event.
As a result of the assault, the applicant has undergone two
operations to correct the fracture to his right ankle. Dr	20
Martin records at page 2 under the heading, Injury:

"The injury was a closed diastasis fracture of the right
ankle. There was a spiral fracture of the proximal

fibular. There was a diastasis between the distal fibular and the tibia and there was a small postal lateral fracture from the tibial articular surface and	30
there was a fracture of the medial malleolus."

As the medical report reveals, there were two fractures, being
a fracturing and a separation of the two bones in the area of
the ankle. However, notwithstanding this, on balance, I am

inclined to adopt the position more consistent with the	40
medical report, namely that the injury really is more properly described as one injury to the ankle.
It was, however, a significant injury. At page 3 of
Dr Martin's report he reports:	50

"The injury was appropriately treated by internal
fixation. A diastasis screw was inserted and two screws
were inserted to fix the medial malleolus. The leg was
then immobilised in a cast and Mr Beasley was discharged

from hospital when mobile non-weight bearing. He

1-4 ORDER 60

remained non-weight bearing until the diastasis screw was

removed in a minor operation in December 2006." 1

The balance of Dr Martin's report indicates that he has made a good recovery in respect of the injury. Nonetheless though, as I have said, it was a significant injury.

10

In addition to the physical injuries of the assault, it also had a psychological effect upon the applicant. He was reviewed by a psychologist, Mr Nembach, and at page 6 of his report it is said by him:

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"It would appear from Mr Beasley's reported history,
reported symptomology and test results that he is
currently experiencing symptoms which are consistent with
a Diagnostic and Statistical Manual of Mental Disorders

4th Edition (DSM-N) diagnosis of:

(i) acute stress disorder; and
(ii) major depression, recurrent.

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It would appear from his test results that he may be
under-reporting the severity of his symptoms as a result
of a simplistic view of the world. It would appear any
psychological symptoms he currently experiences may be

manifested more in a physio social manner."

Mr Nembach goes on to say:

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"It would appear his physiological injury relates to the
attack that occurred in September 2006. There would
appear to be no prior psychological injury or problem

before the attack."

And then later:

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"The significant symptoms involve fear for the family,
hyper vigilance, agitation, numbness, helplessness, poor
concentration, irritability, nightmares, poor sleep,

worthlessness and fatigue."

1-5 ORDER 60

At page 7 of his report Mr Nembach says:

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"It is difficult to ascertain at this stage if there's a
likelihood of a full recovery until Mr Beasley has been
through therapy. Once he has completed therapy there would be a more realistic idea of the likelihood of a full recovery. If there was no therapy it would be
expected there would be very little change in his

symptomology due to the time that has elapsed since the	10
attack. It is also difficult to fully ascertain if there
is any permanent disability until therapy was completed.
If Mr Beasley was able to complete therapy it would be
expected he would have some ongoing symptomology due to the time that has elapsed since the injury. The effect of a disability upon his work and lifestyle cannot be
fully determined until he has completed therapy. It
would be envisaged he would continue to have difficulties
in the workplace and socially, due to his level of hyper
vigilance and fear of other people. This can be	20
avoid the stress of living near the offender and by his ongoing withdrawal from society since moving to Bundaberg. The withdrawals have resulted in
evidenced by his move from Caloundra to Bundaberg to therapy undertaken by the applicant. own immediately family and preferring to avoid social settings within the community."
30

That passage identifies a number of issues resulting from there being no therapy undertaken by the applicant. First, trying to identify the full extent of the injury. Second, whether the injury amounts to a permanent disability and third, whether or not therapy would have any significant

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impact in improving the condition of the applicant.

In respect of the claim for the injury of mental or nervous shock, the amount claimed is at the upper end of a severe form of that injury. In my opinion, the report of the psychologist

50

does not justify a classification of this type. As I have
already identified, the report states that it is difficult to
ascertain the severity of the injury and whether or not it is
permanent. On balance, I consider that the more appropriate
range is that provided for a moderate form of that injury, 1-6 ORDER 60

1

namely, the range of 10 per cent to 20 per cent. The 20 per
cent being at the lowest level of the severe form of that

injury.

In all the circumstances, I do not consider that an allowance	10
of more than 20 per cent should be made. In my view, whilst this form of injury might be described as being at the upper end of moderate, it does not fall into the severe category.
In the circumstances, I will allow 20 per cent for that
injury.	20
Turning then to the allowance for fractures and bruising and
lacerations, the medical evidence and the photographs to which
I have referred, reveal that the bruising in the ankle area
would have been severe. I accept that an allowance of 5 per	30
cent is reasonable for that injury.
For scarring 13 per cent is claimed. That would place it in
the severe level of that form of injury. It needs to be borne
in mind that here the applicant is an adult male and the	40
injury is to the lower leg. In my view, the amount claimed is
excessive. This form of injury could only be described as
falling in the minor/moderate range. In my view, that range
is 2 to 10 per cent. On balance, I consider that an allowance
of 3 per cent is all that can be justified for this injury.	50

Turning then to the question of the fracture. On balance, I consider that the medical evidence establishes one injury to the ankle which in total would fall at the upper end of the 1-7 ORDER 60

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range provided for a severe form of this injury. That range
is 8 per cent to 25 per cent. I will allow 20 per cent. That
20 per cent, coupled with the 5 per cent for bruising, would
adequately compensate the applicant for the physical injury to

the ankle, in my view.	10
Pursuant to section 25 subsection 7 of the Act, I am required
to consider, in determining final compensation, whether any
behaviour on the part of the applicant directly or indirectly
contributed to the injury. As I have indicated, the lack of	20
therapy more likely than not has tended to maintain the injury
of mental or nervous shock at its present state. In that sense it might be said that the applicant has in some way contributed to the ongoing level of this injury. However, as
a consequence of the injury and its effects on him, the	30
applicant is now on a disability pension. In my view, it
would be unreasonable to consider that in all the
circumstances that he has contributed either directly or
indirectly to this injury. Accordingly, I will make no
further discount under this part of the legislation.	40
...
50

1-8 ORDER 60

HIS HONOUR: I will reserve my right to tidy these reasons up

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but the order I will make will be then that the respondent be
ordered to pay the applicant the sum of $36,000 by way of

compensation under the Criminal Offence Victims Act 1995.

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1-9 ORDER 60