Braes v Wilkins
[2001] QSC 121
•20/03/2001
SUPREME COURT OF QUEENSLAND
CITATION: Braes v Wilkins [2001] QSC 121
PARTIES: BARRY BRAES
(Applicant)
v
RONALD LESLIE WILKINS
(Respondent)
FILE NO/S: Application No 129 of 2000
DIVISION: Trial PROCEEDING: Civil Application ORIGINATING
COURT: Supreme Court at Cairns
DELIVERED ON: 20 March 2001
DELIVERED AT: Cairns
HEARING DATE: 4 December 2000
JUDGE: Jones J
ORDER: 1. That the respondent pay the applicant the sum of
$33,750.00 by way of compensation for criminal injury pursuant to the Criminal Offence Victims Act
1995 (Qld).
CATCHWORDS: CRIMINAL LAW – COMPENSATION – grievous bodily harm with intent to do grievous bodily harm – determination of entitlement to compensation under Criminal Offence Victims Act 1995 (Qld)) – assessment of compensation according to statutory compensation scheme.
Criminal Offence Victims Act 1995 (Qld)
COUNSEL:
SOLICITORS:
Mr. J. Darvall for the Applicant
No appearance for the Respondent
Braes Apel Solicitors for the Applicant
JUDGMENT
JONES J:
This is an application for compensation for criminal injury pursuant to the Criminal Offence Victims Act 1995 (Qld), “the Act”. Section 24 of the Act provides that a Court may make an order compensating someone injured by a
personal offence, against the person convicted of such offence. A personal offence is defined in Section 21 of the Act as “an indictable offence committed against the person of someone”.
On 16 May 2000 the respondent was convicted of such a personal offence, grievous bodily harm with intent to do grievous bodily harm and was sentenced to
7 years imprisonment with a recommendation for parole after serving two years.1
The subject incident occurred in Cairns on 18 March 1999.
The applicant was born on 22 February 1948 and therefore, was 51 years of age at the time of the offence and is currently, 53 years of age.
The respondent neither appeared, nor was represented at the hearing of this application. However, the Affidavit of Service of Benjamin Anthony Del Fabbro sworn 23 November 2000 indicates that the respondent was served, personally, at Lotus Glen Correction Centre with a sealed copy of the Supreme Court at Cairns Originating Application 129/2000, the Affidavit of Thomas John Braes and an unselaed copy of the Affidavit of Mr Barry Braes on 23 November 2000. The applicant’s solicitors also served a copy of the relevant material on the Office of the Public Trustee in Cairns. The Affidavit of Mr John Edward Bright, Official Solicitor to the Public Trustee, filed in accordance with District Court Practice Direction 2 of 1995, evidences that the Public Trustee is not aware of any assets held by the respondent.
In his statement sworn on 31 March 1999, marked exhibit “A” and annexed to his affidavit sworn 22 November 2000, the applicant outlines the circumstances and events leading up to the commission of the offence. This is also discussed in the sentencing remarks exhibited to the Affidavit of Thomas Braes.2 In essence, such offence involved the respondent, without warning, firing a bullet from a single barrel 410 shotgun into the applicant’s right hand and chest on 18 March 1999. The incident followed a history of disputation between the applicant and respondent over the sale of a business known as the Trawler Base Cafe.
Mr Braes has now been left with permanent disabilities, daily pain and further, referring to the Victim Impact Statement, a very significant alteration in his life.
Dr Colin Barnes, Orthopaedic Registrar at Cairns Base Hospital, in his report dated 21 February 20003, discusses the applicant’s condition upon being admitted to the emergency department of Cairns Base Hospital on 18 March 1999, following the subject incident and his resultant treatment. Dr Barnes noted,
“X-rays revealed that he had sustained a compound comminuted fracture of the right radius and ulna with much soft tissue damage to the right
1 Exhibit “A” to the Affidavit of Thomas J. Braes sworn 14 November 2000.
2 Exhibit “B”
3 Exhibit “C” to the Affidavit of Thomas J Braes sworn 14 November 2000
forearm. There were six pellets embedded superficially in his chest”. Treatment of such injuries involved a “compound scrub and surgical debridement of the wound” (during which it was observed that the flexor muscles to the fingers had been disrupted), temporary stabilisation of the radius and ulna, further surgical cleaning and changing of dressings, and a split skin graft. The applicant then underwent further surgery for the removal of the Rush pins and bone grafting, dynamic compression and plating. Several months following such surgery, however, the applicant underwent a further two operations, one to remove a protruding ulnar plate and the other, to suture and close a previously open packed wound. One month following this surgery, it was observed that the old radial plate was loose and that the fracture was severely displaced. As a consequence, the fracture had to be reduced and internally fixed with a longer dynamic compression plate. At the time of his last consultation at the fracture clinic on 9 December 1999, Mr Braes was observed to have approximately 3/4 of his usual pronation and supernation of the forearm and ½ of his normal flexion and extension. He appeared to be in very little pain at this stage and was able to cope with usual daily activities.
Ms Sharon Daniels, Clinical Psychologist, in her report dated 17 July 20004, identifies Mr Braes’ residual effects of the subject incident as “difficulties with: apprehension, fear, awakefulness, sleeping, wrist movement, osteoarthritis, embarrassment, disfigurement, avoidance, recurring nightmares, fright, panic, jumpiness, making a fist, holding a pen, reduced typing speed and accuracy, reduced strength, dropping things, gardening, mowing, driving, increased pain”. Ms Daniels noted that the applicant has “tried to adapt and cater for his disabilities and his injuries have adversely impacted on his social, work and leisure activities”. She believed that in time, “it is likely that there will be changes to his personality variables” and that “temperament and injury adjustment changes might be expected, should he receive some psychological counselling”. Ms Daniels also highlighted that “with Mr Braes’Post Traumatic Stress Disorder type symptoms, he will continue to be “at risk” of further psychological decompensation, should he ever encounter another critical accident”.
The Applicant was also reviewed by an orthopaedic specialist, Dr David Shepherd, at the request of his solicitors on 28 August 20005. Dr Shepherd reviewed Mr Braes’history, primarily the reports of Dr Barnes of the Cairns Base Hospital and relevant x-rays and noted the applicant to have suffered “extensive damage to both radius and ulna [with] … a segment of the [ununited] ulna missing. He also noted some deformity of the distal radius and slight shortening of his right forearm.
At the time of consultation, Dr Shepherd believed that Mr Braes’ condition had stabilised but alluded to a risk that the radius “may fail structurally”. He was of
4 Exhibit “D” to the Affidavit of Thomas J Braes sworn 14 November 2000
5 Dr Shepherd’s report is Exhibit “E” to the Affidavit of Thomas J Braes sworn 14 November 2000
the opinion, however, that with the passage of time, this would be less likely. Consulting the AMA Tables (4th edition), Dr Shepherd formed the view that Mr Braes’ injuries “are consistent with a fifty percent disability of the upper limb which translates to a 30 percent whole person disability.
The Applicant’s evidence of his injuries and their effects are adequately canvassed in the abovementioned medical reports, the Victim Impact Statement of
23 April 2000 (Exhibit B to the Affidavit of Barry Braes sworn 22 November
2000) and Mr Braes’ Statement to Police of 31 March 1999 (Exhibit A to the Affidavit of Barry Braes sworn 22 November 2000). I have considered these reports and the applicant’s statements in assessing the severity of the applicant’s injuries and their effects and appropriate compensation.
Compensation provided to an applicant pursuant to the Act is intended to help the applicant and is assessed pursuant to a scale of seriousness of injury. It is not intended to reflect the compensation to which the applicant may be entitled to under common law or otherwise. (s22(3) and (4)). Section 25(4) requires consideration of the compensation table in Schedule 1 in determining an appropriate percentage of the scheme maximum, $75,000.00.
I take the view that the injuries suffered by the applicant as a consequence of the respondent’s conduct may be categorised from the compensation table as follows:
Item Description Range Item 26 Gun shot/stab wound (severe) 15-40% Item 32 Mental or nervous shock (moderate) 10-20%
Where more than one amount is payable, s25(3) prescribes that the aggregate must not equal more than the scheme maximum of $75,000.00.
I assess the degree of harm to the applicant at 45%, combining allowances of 35% and 10% in respect of items 26 and 32, respectively, above. This equates to an award of compensation of $33,750.00.
Section 31 of the Act stipulates that the applicant’s costs are not recoverable.
Section 25(7) of the Act requires the Court, in deciding whether an amount, or what amount should be ordered to be paid for an injury, to have regard to everything relevant, “including, for example, any behaviour of the applicant that directly or indirectly contributed to the injury”. I am of the opinion, having regard to everything relevant that, there should be no reduction in the compensatory amount as, on the evidence before me, the applicant was injured through no fault of his own.
I therefore make the following order:
1.That the respondent pay the applicant the sum of $33,750.00 by way of compensation for criminal injury, pursuant to the Criminal Offence Victims Act 1995 (Qld).
0
0
0