C v Mosley

[2004] QDC 217

DISTRICT COURT OF QUEENSLAND

CITATION:	C v Mosley [2004] QDC 217
PARTIES:	C by litigation guardian TGH Applicant
V

Tony Mosley

Respondent

FILE NO/S:	No D 26 of 2004
DIVISION:	Civil Jurisdiction
PROCEEDING:	Criminal Compensation
ORIGINATING
COURT:	Ipswich
DELIVERED ON:	19 July 2004
DELIVERED AT:	Ipswich
HEARING DATE:	16 June 2004
JUDGE:	Judge Richards
ORDER:	That the respondent pay the applicant $22,500 by way of compensation under the Criminal Offence Victims Act. Any compensation paid pursuant to this order be paid to the Public Trustee on behalf of the applicant child
CATCHWORDS:	Criminal Compensation – infant victim
COUNSEL:	Ms Ybarlucea for the applicant The respondent was not represented
SOLICITORS:	Legal Aid for the applicant

1. The respondent was residing in a de facto relationship with the applicant’s mother. He was not related to the applicant.

2. The applicant was given to crying for long periods of time and the respondent had difficulties coping with the crying. During one of the bouts of crying the respondent became angry at the applicant picking her up by the legs with such force that fractures resulted. At the time of the offence she was 12 months of age. On 11 July 2001 the respondent was convicted in the District Court at Ipswich of unlawfully assaulting the applicant and causing her bodily harm.

3. The applicant’s injuries to her legs are detailed as fractures of the metaphyses of the ends of both femora close to the knees, the metaphyses at the ends of both tibiae at the knees and a periosteal reaction of the shafts of both femora and the right tibia. Those injuries were caused by severe shaking, pulling or twisting of a limb greater than would occur in rough play. Apparently the fractures have now healed and all limbs and joints appear normal according to the medical reports.

4. As a result of the injuries C was delayed in walking. She never crawled but used to swivel on her bottom to get around. She was also delayed in learning to dress herself and slow in learning to feed herself. Dr Maguire provided a report in relation to the applicant and opines that at this stage of her development she does not demonstrate any diagnosable psychiatric disorder. However, she further states that:

   “It is likely that at the time of the offence the child suffered extreme physical pain and distress. I note that this according to the x-ray information would have gone on for some days. Because of her developmental level this would have been accompanied by feelings of utter helplessness and lack of support. Obviously the incident has had a marked effect upon family relationships in C’s life. She has been deprived of her mother and her present caretakers are very frightened of the perpetrator. This fear has had a considerable effect upon their lives and indirectly upon C’s. The likelihood is that she will see the world as a threatening place because of this but at this time her outlook on life is probably a reflection of that of her immediate caretakers.”

5. The applicant’s father deposes to the fact that since the offence the applicant has been frightened of strangers, that she would wake at night screaming and sobbing and would have to have either himself or his mother stay with her until she calmed down. He said she has continued to be clingy and experiences separation problems. She has symptoms which would indicate that she has suffered psychologically as a result of this incident but at this stage it could not be said to be anything other than minor in the spectrum of disorders available under mental and nervous shock. That is not to diminish the terrible injury that the child has suffered.

6. The applicant suffered an injury as a result of a personal offence and is entitled to compensation under the Act. She did not in any way contribute to her injuries. She is entitled to compensation. Compensation should be ordered as follows:

Under Item 20:

Fracture

Loss of Use of Leg - Severe - 20% $15,000

Mental and nervous shock.

Mental and nervous shock – minor – 10% - $ 7,500

This amounts to a total compensation of $22,500.

ORDER

I order that the respondent pay the applicant the sum of $22,500 by way of

compensation.
Any compensation paid to the Applicant pursuant to this order be paid to the Public
Trustee of Queensland to be held on behalf of the applicant.