Carter v Hadley

[2003] QDC 461

[2003] QDC 461

DISTRICT COURT

CIVIL JURISDICTION

JUDGE HOATH

No 1778 of 2003

JEFFREY SHANE CARTER  Applicant

and

PETER HADLEY  Respondent

BRISBANE

..DATE 03/09/2003

ORDER

HIS HONOUR:  The applicant, Jeffrey Shane Carter, applies for an order that the respondent, Peter Hadley, pay compensation to him for the injuries he suffered as a result of the offence of unlawfully wounding with intent to do grievous bodily harm, committed upon him, by the respondent on the 2nd of February 2001 of which the respondent was convicted on the 12th of November 2002.

The circumstances of that offence are that in the early morning of the 2nd of February 2001 the applicant, in company with two other persons, was walking in the Mall in Fortitude Valley when a female made an insulting remark to them.

After the female was told to "Shut up" the respondent approached the applicant and adopted a fighting stance towards him.  Apprehensive that he was about to be assaulted, the applicant punched the respondent two or three times knocking him down to a crouching position.

Whilst in that position the respondent commenced to throw what appeared to be weak punches at the applicant.  In fact, the respondent was armed with a knife or some other sharp instrument and the applicant was not being punched, but stabbed by the respondent.

As a result of the assault on him by the respondent the applicant suffered a number of stab wounds to the front and back of his body.  One of the wounds, which was under his armpit, was particularly serious and could, through loss of blood, have resulted in the applicant's death.

That wound and at least one of the other wounds had to be explored and then closed under general anaesthetic at the Royal Brisbane Hospital.  The applicant was discharged from hospital after four days.

In April 2002 the applicant was examined by Dr Neville Davis, a specialist surgeon.  Dr Davis noted there was a wide scar, five centimetres by three centimetres in the right anterior chest and the submission clavicular region was slightly numb.

In the right axilla there was a six centimetre thin scar that was not tendered in the region of the anterior auxiliary fold.  He also had two thickened scars in the right axilla.  These were vertical and one measured nine centimetres and the other four centimetres.

There was a wide scar about eight centimetres long in the right lower back, this was not tender, but there was numbness in association with the scar.  There was no abnormality on examination of his right shoulder, the grip in his right hand was normal.  There was some reduced sensation on the medial aspect of his right upper limb.

Dr Davis was of the opinion that as a result of his physical injuries there was no significant permanent, or partial disability and that with the passage of time the applicant is likely to make a full recovery.

Subsequently on the 24th of February this year, the applicant was seen by Dr Anthony Kane a specialist, plastic and reconstructive surgeon.

In a report of the 13th of May this year Dr Kane states:

"All of the scars are permanent, they are not likely to improve a great deal from now on.  They are certainly unlikely to deteriorate in my opinion.  Scar revision may assist in making the scars less visible, but I don't think it would make the scars invisible.  This would be a decision that Jeff would need to make as to whether he wants to proceed with this.  I don't believe that any of the scaring is likely to make him unable to pursue his career as a drummer, or any other career that he wished to pursue.  Fortunately, he has been left with no serious or permanent deficit, save for the scarring."

In addition to the physical injuries suffered by the applicant he has been left with psychological sequelae.  Dr Christopher Cantor, a specialist psychiatrist, who examined the applicant on the 28th of May 2002 states that the applicant is suffering from a moderate to severe post traumatic stress disorder as a result of the offence committed upon him.

Dr Kantor was of the opinion that there is a significant possibility that his condition will bring permanent partial disability.  The assessment of psychiatric impairment is meant to proceed following treatment.  He has as yet not undergone treatment.  According to the guides the evaluation of permanent impairment of the American Medical Association, second edition, I believe his degree of psychiatric impairment without treatment would be 10 to 20 per cent with treatment.  This might be expected to decline to around 10 per cent.

According to Dr Cantor such treatment might involve 20 to 30 sessions at between 160 to $200 a session over a period of two years.

The applicant's claim for compensation falls to be assessed on the basis of the stab wounds, the resultant scarring and mental or nervous shock constituted by the post traumatic stress disorder.

The three injuries are specifically referred to in the compensation table in schedule 1 of the Criminal Offence Victim's Act.

Compensation for those injuries is limited to an amount within the range specified for those injuries in the compensation table and is to be assessed within that range, bearing in mind that the maximum amount in the range is reserved for the most serious cases with other cases to be scaled according to their seriousness.

Although the residual scarring could be considered part and parcel of the stab wounds, see the Queen v Jones ex parte Zicon, 2002 2 Queensland Reports 303.  In my view it is more appropriate in this case to treat them individually whilst, however, ensuring that such an approach does not result in double compensation for the same component.
Having regard to the ranges set out in the compensation table a reasonable assessment of the applicant's entitlement is, in my view, as to the stab wounds, 10 per cent, as to the resultant scarring, 10 per cent, as to mental and nervous shock, 10 per cent.  That gives a total of 30 per cent of the scale maximum of $75,000, namely $22,500.

Although the applicant threw the first punches, they were in response to an apprehended assault on him by the respondent and the applicant's actions should not be regarded as directly, or indirectly contributing to the injuries sustained by him.

Accordingly, I order that the respondent pay the applicant the sum of $22,500 by way of compensation for injuries suffered by the applicant as a result of the offence of unlawful wounding with intent to cause grievous bodily harm of which the respondent was convicted on the 12th of November 2002.

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