Christian v D'Alesandro

[2003] QDC 460

[2003] QDC 460

DISTRICT COURT

CIVIL JURISDICTION

JUDGE HOATH

No 4599 of 2002

MARK CHRISTIAN

Applicant

and

PIERRE ANTHONY D'ALESANDRO

and

BEN DAVID URBANOWICZ

and

NATHAN MALCOLM BALLARD

First Respondent

Second Respondent

Third Respondent

BRISBANE

..DATE 04/09/2003

ORDER

HIS HONOUR: This is an application by Mark Christian pursuant to the Criminal Offence Victims Act 1995 for an order that the respondent Pierre Anthony D'Alesandro pay compensation for the injuries the applicant suffered as a result of the offence of grievous bodily harm committed upon him by the respondent on 26 January 1998.

The circumstances of that offence are that the respondent, in company with two other persons, was asked to leave a party being held at a home occupied by the applicant and others.  After leaving the house, they later returned and the two persons accompanying the respondent commenced to assault one of the occupants - Stuart Edmundson.  That assault moved into a room where the applicant was sleeping.  The respondent joined in the assault on Edmundson at that stage.  During the course of the assault, the respondent pushed Edmundson against a wall causing a window to smash and glass to fall on the applicant causing lacerations to his forehead, nose, mouth, middle finger and left upper arm.

Following the assault, the applicant was taken to the Royal Brisbane Hospital for treatment.  The laceration to his forehead was repaired with a skin graft and the lacerations to his nose and mouth were sutured.  He was discharged from hospital the next day.

The applicant is a resident of the United Kingdom.  At the time, he was 21 years of age and had been in Australia approximately one month into a planned six month holiday in Australia.  As a result of the offence committed upon him, the applicant was unable to enjoy the remainder of his holiday in Australia.  Apart from lethargy caused by the injuries, he was unable to enjoy activities involving exposure to the sun or water.  He required ongoing medical treatment and had to be available for the police investigation and Court proceedings arising out of the incident.  He had difficulty sleeping, suffered flashbacks of the incident, was preoccupied and sensitive about his facial scarring and felt angry and confused.

It is now over five years since the incident.  The applicant has long since returned to England where he now works as a freelance graphic and illustration designer.

On 14 January this year, the applicant was seen by Dr Shakeel Akhtar, a consultant oral maxillo-facial and aesthetic facial surgeon.  In a comprehensive report following that consultation, Mr Akhtar states,

"Mr Christian is now left with a variety of problems:

1.Scarring to the left middle finger and upper arm.  The scars are well healed and cause no cosmetic disturbance.  Although no nerve injuries are identified, he has persisting discomfort/tingling around the scar.  The exact cause for this is not clear but this is not likely to improve any further.  These injuries should not impair his ability to function normally or hinder him in his hobbies or in the open job market;

2.Scarring to his face.  Scarring in the majority of patients tends to improve by a process of maturation.  This occurs over a 12 to 18 month period.  Beyond this timeframe, little or no improvement can be expected.  It is now five years since the incident and it is therefore my opinion that the residual scarring will be permanent.  Mr Christian will be left with a permanent depressed indented scar to the forehead, a permanent scar to the right upper lip just lateral to the nasal aperture, a permanent scar to the nose with bulkiness of the scar and adjacent tissues.  Also there will be two palpable visible bony prominences at the superior margin over the dorsum of the nose, a permanent but mild notch at the right alar rim of the nose.  Tingling and discomfort around the nasal laceration is unlikely to improve at this stage and, once again, on the balance of probability is likely to be permanent.  These facial/scars will not jeopardise him in the open job market if viewed purely from a physical sense.  Any psychological injury secondary to the physical injury may, however, be of some hindrance."

More recently, on 29 April 2003 the applicant was seen by Dr Kay, a specialist psychiatrist.  Dr Kay reports:

1."Mr Christian describes experiencing emotional symptoms in keeping with a traumatic physical assault.  In the short term, this produced acute emotional symptomatology as evidenced by sleep pattern disruption with fear of falling asleep, impaired confidence and a great sense of injustice.  In the longer term, he reports continuing impaired confidence in interpersonal relationships, feeling uneasy in larger social meetings.  He remains sensitive to comments about his face and aware that his facial scarring distinguishes him from others;

2.Mr Christian describes experiencing emotional adjustment disorder as outlined in category 43.2 of the 10th edition of the International Classification of Diseases.  This refers to a continuing sense of distress and emotional disturbance sufficient to interfere with social functioning and performance which arises in direct consequence to a specific stressful life event;

3.I do not believe that any specific counselling or psychological treatment is liable to further help Mr Christian adjust to the physical and emotional consequences of the head injury sustained in the attack."

The Criminal Office Victims Act provides that a person against whom a personal offence has been committed may apply to the Court for an order that the convicted person pay compensation to the applicant for the injuries suffered by the applicant as a result of the offence.  Compensation under the Act is intended to help the victim.  The amount of compensation an applicant is entitled to under the Act does not involve applying the principles used to decide common law damages for personal injuries but is limited to the amount specified or within the range specified for an injury referred to in the compensation table in schedule 1 of the Act.

In assessing compensation in accordance with the amount specified in the compensation table, the maximum amount prescribed is reserved for the most serious cases and the amounts in other cases are intended to be scaled down according to their seriousness.  In this case, as a consequence of the offence committed upon him, the applicant suffered lacerations, facial scarring and mental and nervous shock.  Those three injuries are specifically referred to in the compensation table. 

In my view, a reasonable assessment of the applicant's injuries and his entitlements are:  As to the lacerations, five per cent; as to the facial and bodily scarring, 10 per cent; as to the mental and nervous shock, 10 per cent.  That gives a total assessment of 25 per cent of the scheme maximum, namely, $18,750. 

I order that the respondent pay the applicant the sum of $18,750 by way of compensation for the injuries the applicant suffered by reason of the offence of grievous bodily harm of which the respondent was convicted on 22 November 1999.

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