Bo v DJO

[2010] QDC 462

[2010] QDC 462

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 2835 of 2009

BO	Plaintiff
and
DJO	Respondent

BRISBANE

DATE 14/09/2010

ORDER

HIS HONOUR:  This is an application for criminal compensation to be assessed for the applicant for personal injuries he suffered as a consequence of personal offences committed against him by the respondent who is the applicant's father.

The applicant is a child.  He was born on the 26th of July 2000.  He was offended against by the respondent during a period between the 8th to the 25th of September 2000 when the applicant was approximately eight weeks of age.

Initially, the applicant's mother was charged with the personal offences against the applicant.  These were the personal offences of grievous bodily harm and assault occasioning bodily harm on a date unknown between the 8th of September 2000 and the 25th of September 2000 at Brisbane.

The respondent father pleaded guilty in the District Court at Brisbane to the charge of failing to provide for the applicant the necessities of life.  He did that on the 26th of July 2001.

However, on the 17th of August 2001 the applicant's mother was also convicted before the District Court at Brisbane for the personal offences I have mentioned.  At that time she was sentenced to eight years' imprisonment for the grievous bodily harm offence and three years' imprisonment for the assault occasioning bodily harm.

For the failure to provide the necessities of life, the respondent father was sentenced to an 18 month imprisonment order fully suspended for an operational period of two years.

On the 17th of September 2003 the convictions against the applicant's mother were set aside by the Court of Appeal on the ground that the pleas of guilty that she entered could not be said to be free and voluntary.

Later, on the 17th of August 2004 the respondent father was charged with the personal offences against the applicant, including an offence of attempting to pervert the course of justice.  For the offence of grievous bodily harm he was sentenced to seven years' imprisonment, and for the offence of assault occasioning bodily harm he was sentenced to three years' imprisonment.  Those penalties were cumulative.

The application for the applicant was filed in this Court on the 2nd of October 2009. Pursuant to section 167 of the Victims of Crime Assistance Act 2009 the Court must hear and continue to hear and decide the application under the repeal provisions of the Criminal Offences Victims Act 1995.

The application is also within time regarding the three-year limitation period.  That is because the applicant is a minor and his application can be brought up to three years from the date of turning 18, which in this case would be 26 July 2021.

An order for substituted service has been made in this matter.  I'm satisfied on the evidence that the order has been complied with and that notice has been given of the application to the respondent and that I can proceed to assess the compensation in this matter.

It should be noted in passing that the respondent admitted that his wife had not inflicted the injuries on the applicant but that he had been responsible for those injuries.

There are a number of reports before me documenting the injuries.  Dr Wood has provided a report.  He is a consultant paediatrician and the Director of Health Services at the Mater Childrens Hospital.  He states the injuries included head injuries; those to the skull was a wide fracture in the parietal bone on the left side and there was a short fracture of the occipital bone at the back of the skull.  There was also brain injuries.  A CT scan showed a large subdural collection of blood on both sides in the front area.  There was also a small collection of fresh blood lying poster ally in the occipital, that is, the back of the head.  The brain was compressed by the subdural collections and some shrinkage of the brain was noted at that time.  There was also eye injuries, they were bilateral and there were retinal haemorrhages.  There were chest injuries.  There were fractured ribs on the right side and fractured ribs on the left side.  There was also an upper limb injury, that is, the left arm showed a supracondylar fracture just above the elbow of the humerus.  There were lower limb injuries.  The left leg showed a healing fracture of the lower third of the tibia, that is, the shin bone, and there was also a healing metaphyseal fracture noticed at the upper end of the left tibia.  There was also a bowing fracture, that is, bending of the left fibula, the calf bone, and there were also one centimetre bruises, approximately, in area noted in the left temple and the left cheek and the right paravertebral region, that is, on the back.

The evidence also indicates that when admitted to the Logan Hospital Emergency Department the applicant was treated for convulsions.  He was intubated and ventilated for respiratory support and a CT head scan was performed.  He continued to convulse.  He was transferred to the Mater Hospital.  There he was diagnoses with persistent seizures, diabetes insipidus and anaemia along with the abovementioned injuries.

He presented with marked neurological impairment and seizures because of the brain injury which were controlled with medications and supportive therapies.  He was unconscious and overall condition was critical.

Treatment continued.  He required consultation with neurology and orthopaedic departments.  He received physiotherapy and occupational therapy on a regular basis.  He was discharged approximately 22 days later.

Although he showed steady improvement in his developmental area he continued to show mild ongoing neurological concerns particularly with his motor development and his vision.

The report of Dr Wood also refers to after discharge.  What was noted was he developed physical impairment, spastic diplegia, significant development delay, learning difficulties, delayed speech and language skills problems over the period of time secondary to the non-accidental brain injuries.  He had difficulties impacting all areas of his life.  He was also attending a special education unit.  He was expected to have other future complications.

The report indicates that he attended clinics at the Mater Childrens Hospital on numerous occasions during the years, in particular in the year 2000, but then after that in the following years.  He was referred to follow-up at the Cerebral Palsy League at Mt Gravatt.  He had regular and frequent follow up, 19 times approximately, at the physiotherapy unit at Mt Gravatt.  He attended the occupational therapy unit at Mt  Gravatt and was seen by other doctors and departments.

Dr Wood has provided a further report; this one is dated 7 December 2005.  It was noted then that the chest injuries, although severe, were self-limiting with no long-term effects.  The upper limbs were also noted to have been severe injuries but with no long-term effect, as were the lower limbs, severe injuries with no long-term effects.

The major long-term effects were cerebral palsy and intellectual damage resulting from the brain injury.

Dr Wood has provided a further report; this one is dated 26 August 2008.  He noted that the applicant presented at the beginning of 2008 with increasing headaches, seizures and a decline in his school performance.  An operation was performed on the 25th of February 2008.  In this, a right frontal subdural peritoneal conduit was placed.  This produced an improvement in the applicant.  However, Dr Wood is of the opinion that although the applicant's clinical improvement would continue he will never be entirely neurologically normally.  Dr Woods states in his opinion elements of his cognitive delay and spastic diplegia are likely to persist.

Dr Keane has also provided a report.  She notes that Dr McGuire, a psychiatrist, has stated that although the applicant cannot be diagnosed with a psychiatric disorder at this stage she recommended that this not be a final assessment as it is difficult to predict what psychiatric disorder may arise as a result of the offences.  Dr Keane noted the applicant was in mainstream school for that year but did receive remedial assistance for literacy and numeracy.

Dr Keane notes, though, that academic functioning assessment demonstrated deficits.  The applicant was unable to correctly identify all letters of the alphabet and he was unable to read; he was not able to write his full name; numerical operations or numeracy ability fell well below his expected level of functioning based on his current full scale IQ score.  She states the overall pattern of cognitive weaknesses noted on this assessment represents a global decline in functioning when compared to his estimated likely functioning in the low average range.  It is consistent with an acquired brain injury rather than being a reflection of a constitutional intellectual impairment.

Dr Keane is also of the opinion held by Dr McGuire that it is not possible to comment yet on a diagnosis regarding what psychiatric disorder the applicant may suffer from in the future.  She is of the opinion he may experience anxiety and depression as he becomes aware of his own limitations and the differences he perceives between himself and his sisters and peers.  It is possible that he will experience heightened emotional distress at critical transition periods in life, for example, leaving school and going on to further educational training, establishing a career, entering into a long-term relationship and marrying when his peers make these transitions successfully.  At those stages it is likely he would require psychological counselling to deal with symptoms of emotional distress.

Regarding the impact of his acquired brain injury on his cognitive function, Dr Keane states this is in the severe range.  Dr Keane states the investigations indicate that the applicant sustained a severe brain injury.  She also states the full impact of the brain injury is often not seen until the brain, in particular the frontal lobes, become fully mature in early to late adolescence.  On current assessment, she states, the applicant's overall functioning falls in the extremely low range and this indicates that he will likely experience difficulty sustaining employment in the open employment market.  She is of the opinion that his current assessment indicates that he will be likely to require long-term support in terms of the activities of daily living and his living arrangements and accommodation.

At this stage it is difficult to predict the future needs that the applicant is likely to have because of his injuries.

I am mindful on an application of this kind that the compensation ordered by the Court is not meant to reflect the amount of compensation the applicant would be entitled to under common law and, further, that the maximum is reserved for the most serious cases (see section 22(3) and (4)).

However, because of the effect of section 183 of the Victims of Crime Assistance Act 2009 it is understandable that the application has been brought at this stage.

Although it is difficult to predict the future, on the evidence I am satisfied that the proper approach to the assessment of compensation in this case is that with respect to mental and nervous shock that the chance that the applicant will suffer this in the future ought to be assessed as best as possible.

I am also satisfied that the applicant did nothing to directly or indirectly contribute to his injuries.  Therefore, there is to be no deduction from his compensation for any contribution.

In all the circumstances, doing the best I can, I assess the applicant's compensation under item 1, bruising and laceration, minor/moderate, at 3 per cent which is a sum of $2,250.

Further, under item 11, for a fractured skull, brain damage severe, where the range is up to 100 per cent, I allow 80 per cent, which is a sum of $60,000.

Further, under item 16, fractured, loss of use of arm, wrist displaced and immobilised, there is a range provided in the schedule of between 8 per cent to 30 per cent, I allow 15 per cent, which is a sum of $11,250.  It is to be noted that the doctor said the injury was severe although it now has no long-term effects.

Further, under item 20, for fracture, loss of use of leg, ankle, severe, the range is 8 to 25 per cent.  I allow 15 per cent, which is a sum of $11,250.

Under item 23, neck, back, chest injuries, severe, the range is between 8 per cent to 40 percent, I allow 15 per cent, which is a sum of $11,250.

Further, under item 30, for loss of vision, one eye, the range is up to 100 per cent, I allow 15 per cent, which is a sum of $11,250.

Finally, under items 32, mental and nervous shock, moderate, the range is between 10 to 20 per cent, I allow 15 per cent, a sum of $11,250.

The total is 158 per cent or $118,500.

As the scheme maximum is $75,000 I allow the maximum $75,000.

I order the respondent to pay the applicant the sum of $75,000 and there will be an order as per the draft.  Order as per the draft initialled by me and left with the papers.

----