Dadd v Masina

[2006] QDC 487

DISTRICT COURT OF QUEENSLAND

CITATION:

Dadd v Masina [2006] QDC 487

PARTIES:

PETER JAMES DADD

Applicant

V

IVAN ABRAHAM MASINA

Respondent

FILE NO/S:

D6/06

DIVISION:

Civil

PROCEEDING:

 Application for criminal compensation

ORIGINATING COURT:

District Court, Innisfail

DELIVERED ON:

1 December 2006

DELIVERED AT:

District Court, Innisfail

HEARING DATE:

13 November 2006

JUDGE:

Nase DCJ

ORDER:

Ivan Abraham Masina is ordered to pay Peter James Dadd  the sum of $25,500 by way of compensation pursuant to the Criminal Offence Victims Act 1995.

CATCHWORDS:

SOLICITORS:

Mr B. Gillan, solicitor, appeared as town agent for Eric Muir solicitor for the applicant

The respondent did not appear

1. This is an application for a compensation order by Peter James Dadd (the applicant) pursuant to the Criminal Offence Victims Act 1995 (the Act). The respondent to the application is Ivan Abraham Masina.

1. The respondent has chosen not to appear or to be represented at the hearing of the application.  As a consequence, it has proceeded in his absence and solely on materials placed before the court by the applicant.

1. The respondent was convicted on indictment in the District Court at Innisfail on 3 November 2003 of an offence of doing grievous bodily harm to the applicant.  On the same date he pleaded guilty to a further offence of retaliation against a witness committed on 4 October 2003.  In the first offence the applicant was confronted and then suddenly punched by the respondent.  In the second he was verbally threatened by the respondent.  For these offences, the respondent was ordered to serve a period of two years imprisonment.

1. The assault occurred at Innisfail when the applicant was walking to a taxi rank in the early hours of a Saturday morning (22 February 2003).  He was confronted  by a man (the respondent) who he recalls smelt strongly of alcohol and was bare‑chested.  After a brief conversation, the man punched him without warning.  The punch connected heavily with his jaw.

1. On subsequent examination he was found to have suffered a bilateral fracture to his jaw.  The claim advanced is for the fractures to his jaw and for mental or nervous shock.  Mental or nervous shock is a compensable injury under the legislative scheme for compensation.

1. I am satisfied the applicant suffered an injury or injuries within the meaning of s 20 of the Act and the offence is a personal offence within the meaning of s 21 of the Act.

1. Under the legislative scheme a court may make a compensation order up to the scheme maximum in accordance with the provisions of the Act.  The method of assessment under the legislative scheme involves associating an injury suffered by an applicant with a corresponding item in a compensation table attached to the Act.  The maximum awards of compensation are to be reserved for the most serious cases and the awards in other cases are to be scaled according to the relative seriousness of the particular injury (s 22(4)).  In assessing compensation it is important to be mindful of the principle that the compensation which may be awarded under the Act is intended to help an applicant and is not intended to reflect the compensation to which the applicant may be entitled at common law (s 22(3)).

1. Surgery was required to repair his jaw.  During surgery two teeth were removed and metal plates and screws inserted to hold the jaw in position.  His teeth were wired in a closed position for three months.  During this time the applicant said he suffered extreme pain.  He was not able to return to work for a period of six months.

1. A report from an oral and maxillofacial surgeon (Dr Christopher) was placed before the court in support of the claim.  At the date of the report (11 July 2006) he complained of numbness of the right lower lip and chin.  He also complained of aching in the area of one of the plates.  On investigation Dr Christopher found signs that the reabsorption of surrounding bone around the plate was causing discomfort to the applicant.  Dr Christopher thought the plate would need to be removed, but otherwise he thought the fractures should settle well.  The numbness the applicant presently experiences is due to nerve damage, and is permanent.

1. The applicant is a young man (23 years).  He has mainly worked around Innisfail on banana farms, a lifestyle he enjoys.  He has also worked on local fishing boats.  After the offences he became apprehensive about his safety. Because of his fears he  moved to the Gold Coast area.  At the date of the psychological assessment (28 March 2006), he planned to look for work on banana farms in the Innisfail area.

1. The applicant told Mr Chittenden (who completed the psychological assessment) that he has found it difficult mixing socially since that assault.  Most of the time at the Gold Coast he remains at home watching television.  He has trouble sleeping because he keeps thinking about the offence.  He still has dreams about the incident.  He says he becomes quite depressed at times and is concerned about his future.  Mr Chittenden thought the applicant exhibited some of the symptoms of a post traumatic stress disorder[1], although he did not satisfy the criteria for a post traumatic stress disorder. Mr Chittenden thought he did meet the diagnostic criteria for an adjustment disorder.

   [1]Because “he has become quite hyper vigilant, suffers from anxiety, particularly when on his own, has sleeping problems and at times, bad dreams.

1. Fractures of the face are dealt with in item 6 (minor), item 7 (moderate), and item 8 (severe) of the compensation table.  The fracture the applicant suffered was a bilateral fracture to the jaw which required surgical repair and the insertion of plates and screws to set the jaw.  In the process he lost two teeth and suffered pain for an extended period of time.  His jaws were wired closed for three months.  He was unable to return to work for six months.  He will need to undergo further surgery for removal of one of the plates which is causing problems.  Typically with these injuries, he suffered some nerve damage resulting in numbness to part of his face.

1. The exercise the court is required to undertake when assessing an injury under the compensation table is to endeavour to rank the claimed injury in a continuum according to its severity.  The scheme of compensation is designed to provide a relatively straightforward and inexpensive procedure for delivery of a money judgment intended to help an applicant rather than to compensate the applicant fully for the injury and its consequences.  A fracture of the jaw, which has been repaired successfully but which required surgery and the insertion of plates, and which is associated with some tooth loss and nerve damage would normally be ranked in the moderate range.  As the applicant’s jaws were wired together for an extended period of time, I think the injury should be ranked towards the top of the moderate range or bottom of the severe range.  In all the circumstances, 20 per cent will be allowed for this injury.

1. The psychological assessment was conducted three years after the assault.  He was then still living at the Gold Coast, and afraid to return to live at Innisfail, although he identifies Innisfail as his home town.  Mr Chittenden was satisfied he had suffered stress and anxiety as a result of the assault and the subsequent surgery.  His ability to function socially is impaired, and he is reluctant to seek a relationship with a woman. The psychologist is hopeful that in the right environment and with support the psychological consequences of the assault should diminish, although they may never entirely disappear.

1. I am satisfied the applicant suffered and suffers mental or nervous shock as a result of the assault.  Mental or nervous shock is dealt with in items 31 (minor), 32 (moderate), and 33 (severe) of the compensation table.  The ranges provided are 2 to 10 per cent, 10 to 20 per cent and 20 to 34 per cent of the scheme maximum respectively.  I assess the applicant’s mental or nervous shock as falling near the top of the minor range, or bottom of the moderate range.  In all the circumstances, 14 per cent of the scheme maximum will be allowed for mental or nervous shock.  The total compensation therefore calculates out as $25,500.

1. The court is also required to consider whether any conduct on the part of the applicant may have contributed, directly or indirectly, to the injury suffered by him.  In this case there was no relevant conduct on the part of the applicant that should reduce the award to which he is otherwise entitled.

Order

1. Ivan Abraham Masina is ordered to pay Peter James Dadd the sum of $25,500 by way of compensation pursuant to the Criminal Offence Victims Act 1995.