Bloomfield v. Brown

[2008] QDC 47

[2008] QDC 47

DISTRICT COURT

CIVIL JURISDICTION

JUDGE BRITTON SC

No 104 of 2007

ELLA REAN BLOOMFIELD	Applicant
and
JASON LARCOM BROWN	Respondent

ROCKHAMPTON

..DATE 20/03/2008

JUDGMENT

HIS HONOUR:  This is an application by Ella Rean Bloomfield ("the applicant") for compensation pursuant to the provisions of the Criminal Offence Victims Act 1995 ("COVA") for injury sustained as the result of the commission of an offence by Jason Larcom Brown ("the respondent") in respect of which he was convicted upon indictment at the District Court Rockhampton on the 19th of April 2007.  The offence was committed on the 4th of July 2003.  The offence was one of grievous bodily harm. 

The applicant was born on the 21st of May 1967 and is now 40 years of age.  The application was not contested; there was no appearance by or on behalf of the respondent. 

The circumstances surrounding the commission of the offence are that the applicant and the respondent were partners.  They had lived together for about five years prior to the commission of the offence but had known each other for much longer than that. 

At the time when the offence was committed, both the applicant and the respondent were in a state of intoxication.  It seems that they had been drinking together since the respondent's mother's funeral on the 2nd of July.  Early on the morning of Friday the 4th of July, the respondent had a fight with another person and, following that, he came to where the applicant was sitting and struck her in the face with his fist.  It was an unprovoked attack and the applicant has no idea why the respondent struck her. 

The applicant felt immediate pain and went home to try to sleep.  She was unable to sleep and went to the hospital where she was seen by a registered nurse.  On examination, she was found to have swelling of the right side of her face.  She was unable to grit her teeth together and it seemed that she was spitting out a small amount of blood and there was grazing inside of her mouth on the right-hand side. 

The applicant was advised to go to the Rockhampton Base Hospital and undergo an X-ray.  She did this and was then flown to the Royal Brisbane and Women's Hospital where she was found to have bilateral fractures of the mandible.  Open reduction and internal fixation was undertaken on the 5th of July 2003.  She was transferred back to Rockhampton on the 8th of July 2003.  A review was conducted at the Outpatients Clinic on the 22nd of July 2003 and the result was regarded as good with good occlusion and, at that stage, she was tolerating a soft diet.

She subsequently attended on Dr Mary Dunne of the Mimosa Medical Centre on the 4th of August 2003 when she had a painful area on the right side of her jaw.  She was prescribed Panadol and referred to a dentist. 

On the 17th of October 2003 she was seen by a doctor at the Mimosa Medical Centre where she still had pain on the right side of the jaw and she was prescribed analgesics and anti-inflammatory medication. 

…

HIS HONOUR:  The report of Dr Dunne refers to the extraction of a tooth being undertaken in November of 2003, but the material does not seem to me to establish any causal relationship between the tooth extraction and the commission of the offence of grievous bodily harm.  

The affidavit by the applicant indicates that as at the date of swearing of that affidavit, she was still suffering from pain in her jaw for which she takes Panadeine Forte.  She does not claim to be suffering from any other ongoing problems, either physical or psychological.  There is no specialist medical evidence before me.

I am satisfied that as a result of the commission of the offence of grievous bodily harm by the respondent against the applicant, she has suffered an injury for which she is entitled to compensation pursuant to COVA. The injuries which, in my view, give rise to an entitlement to compensation are, firstly, soft tissue injuries which should be assessed under Item 1 of the Compensation Table, namely Bruising/Laceration (Moderate), for which compensation is to be assessed within the range of one per cent to three per cent of the scheme maximum. I assess compensation at three per cent of the scheme maximum.

The other injury is the fractured mandible.  Having regard to the fact that it was a bilateral fracture and that the applicant is still suffering from pain, requiring analgesic medication, and that it is now approaching five years since the injury, it seems to me that the appropriate item in the Compensation Table is Item 8, namely Facial Fracture (Severe), for which compensation is to be assessed within the range of 20 per cent to 30 per cent of the scheme maximum.  I assess compensation for this injury at 25 per cent of the scheme maximum.

The total compensation is, therefore, 28 per cent of the scheme maximum which is $21,000. 

The attack seems to me to have been entirely unprovoked and there is no conduct of the applicant or any other matter which, in my view, adversely impacts upon the making of an award or the quantum of an award.

I order that the respondent pay to the applicant the sum of $21,000.

-----