Deacon v Gaddes
[2000] QDC 433
•16/06/2000
[2000] QDC 433
IN THE DISTRICT COURT
| HELD AT CAIRNS | Application No. 37 of 1998 |
| BEFORE HER HONOUR JUDGE BRADLEY | |
| 16 JUNE, 2000 | |
| Applicant: | ROBERT ANTHONY DEACON |
| Respondent: | RICHARD GADDES |
REASONS FOR JUDGMENT
This is an application made pursuant to s.663B of the Criminal Code for compensation
for injuries sustained when the applicant was assaulted by the respondent on 31 October, 1993.
On 27 January, 1995 the respondent pleaded guilty to a charge –
“That on the 31st October, 1993 at Cairns in the State of Queensland he unlawfully did
grievous bodily harm to one Robert Anthony Deacon.”
Attempts to serve the respondent with the application and supporting material personally
were unsuccessful and an order was made for substituted service upon his parents in Urangan.
Service of the application and supporting material has been effected on the respondent’s
mother and the respondent was not represented and did not appear at the hearing of this
application.
The facts as presented before the sentencing Judge are that both the applicant and the
respondent (who were not previously known to each other) were among a group of people
who attended a party on the night of 30 October 1993. The applicant attended the party with
his friend, Richard, at whose home he intended to stay the night. The applicant, Richard, some
other friends and two girls left the party and went to Richard’s house. There, Richard had sex with one of the girls out in front of the house. The applicant saw what was going on but left
them be and continued to consume alcohol and socialise inside the house. Eventually he fell
asleep. The applicant was awoken to the sound of yelling and screaming outside. He went out
and saw Richard being set upon by four other people. He yelled at them to stop and became
involved trying to break up the fight. The respondent, who was one of the four attackers,
picked up an empty Jim Beam bottle and threw it at the complainant. The bottle hit the
complainant on the forehead. The explanation for the assault on Richard is that the girl he had
sex with had returned to the original party and made a complaint that she had been raped. The
four attackers, including the respondent, decided to exact some retribution as a result of her
complaint. The respondent says that he threw the bottle after the applicant refused to let go
of one of his friends.
In his sentencing remarks His Honour Judge White describes the applicant as an
“innocent young man” who had nothing to do with the original complaint at all, who “came
out, saw his friend being attacked by a group of cowards in a very cowardly way in my view,
and very reasonably intervened”. It is clear therefore that no behaviour on the part of applicant
directly or indirectly, contributed to the injury suffered by him and in my view there are no
other relevant circumstances which need to be considered which may lead to a reduction of any
criminal compensation.
The applicant states that upon being hit by the bottle he instantly felt pain to his forehead,
dropped to his knees and lost control of his arms. He felt with his fingers that there was a hole
in his forehead, that it was bleeding badly. He did not wait for an ambulance and drove himself
to the Cairns Base Hospital.
According to a statement from a Principal House Officer Surgery at the Cairns Base Hospital the applicant sustained a compound fracture to his frontal bone. The applicant was taken to the operating theatre: “during which the finding was a comminuted fracture of the
anterior wall of the frontal sinus. A blood clot was removed and detached mucosa from sinus
space. Both fronto-nasal ducts were probed and were patent through to nose. The bone
fragment was reduced. It was also noted that there were multiple fracture lines present on the
posterior wall of the frontal sinus, but there was no evidence of a CSF leak”. A titanium plate
was inserted during surgery which plate was removed approximately four months after the
operation.
According to his most recent affidavit the applicant continues to suffer from the
following as a result of his injury:-
(a) Scarring on the forehead; (b) Droopy right upper eyelid; (c) No sense of smell; (d) Severe headaches and discomfort when suffering from a cold; (e) Severe headaches on average once a fortnight which can last up to a week at a time; (f) Disintegrating teeth and changed bite; (g) Episodes of dizziness when walking or getting up from a sitting position; (h) Very low self esteem; (i) Depression and self consciousness;
(j) Anti-social behavioural problems; (k) Difficulty making new friends; (l) Relationship difficulties with de facto; (m) Inability to continue his career in the nightclub industry; (n) Difficulty working and dealing with customers; (o) Eyes sensitive to sunlight; (p) Muscular pain in back and neck; (q) Memory loss.
The applicant is presently aged 32 and was 25 at the time of the offence. He is in a de
facto relationship and has two children aged 8 and 5. His wife was obliged to assist the
applicant intensively for the first three weeks after his release from hospital after which the
applicant and his wife separated for six months and it has only been over the last 12 months
that their relationship has improved. After the departure of his wife, the applicant was cared
for by his mother and friends whilst bedridden for a further five weeks.
I have been provided with a number of reports by medical specialists and others who
have treated the applicant, including Dr. D. Laing, ear nose and throat surgeon, report dated
30 March, 1995; Dr. John W. Ferguson, Oral and Maxilla Facial Surgeon, report dated 2
August, 1994; Ms Sharon Daniels, clinical psychologist, report dated 11 March, 1995; Dr.
Geoffrey Boyce, consultant neurologist, reports dated 22 November, 1994; 6 November, 1997
and 22 May, 1999; and Dr. Mark Harrison, Ophthalmologist, report dated 9 April, 1999.
In brief, it appears from the reports tendered that the applicant suffers post concussional
syndrome which is a major permanent impairment and which Dr. Boyce regards as a 10%
impairment of the body as a whole. It is permanent and stable. He has muscle contraction
problems and also associated sinus problems and Dr. Laing has suggested surgical correction
in the form of a septoplasty and sinus surgery to open up the nose and to drain the sinuses.
This would help some of his headaches and hopefully any anosmia problems (sense of smell).
Dr. Harrison is of the opinion that it is quite unlikely the applicant has suffered any significant
permanent damage to his visual apparatus as a result of his injuries.
Ms. Daniels confirms the diagnosis of post-concussional syndrome and noted that at the
time of writing her report (March, 1995) it was likely that the applicant’s previous memory
capacity may return. Ms. Daniels was of the opinion that –
“Mr. Deacon’s emotional and temperament changes are in likelihood an indirect consequence of the injury. They are exacerbated by the grief and social adjustment involved in losing some of his memory functions. Nonetheless the strain of coping with his limitations, constant pain and the changes to the his daily life also contribute to his frustration and impatience.”
Ms. Daniels concludes that-
“Mr. Deacon presents as a frustrated and irritated man, who was actively involved with
life and whose life has been disrupted as a result of the accident.”
Ms. Daniels recommends pain management treatment of 12 sessions of one hour’s duration
each. Each session would cost $146.00.
Dr. Laing estimates the cost of the recommended surgery at $2,721.80.
In his affidavit sworn on 21 December, 1998, the applicant lists the medical, travelling
and associated expenses that he has incurred as a result of his injury. These appear reasonable
(although the costs of medical reports should be deducted as they are more correctly costs of
this application) and amount to $2,139.00.
The applicant has also given some detail of his loss of earnings as a result of his injury
and subsequent disabilities, however, the evidence in that regard is not in my view sufficient
to support a claim of $25,000 for past economic loss and a similar amount for future economic
loss as submitted on behalf of the applicant. In my view, on the material before me, it is fair
to award a global amount of $30,000 for past and future economic loss.
Compensation under Chapter 65A of the Criminal Code is to be assessed on the same
basis as an award of damages for personal injury and I assess compensation as follows:-
General Damages $30,000.00 Interest thereon ($15,000 x 2% x 5 yrs) $ 1,500.00 Past and Future Economic Loss $30,000.00 Interest thereon ($20,000 x 5% x 5 yrs) $ 5,000.00 Past Care and assistance – (2 hrs per day x 8 wks x $10
Per hour) $ 1,120.00
Future Surgery and pain management treatment $ 4,473.80 Out of pocket expenses $ 2,139.00 Interest thereon ($2139 x 5% x 5 yrs) $ 534.75 TOTAL $74,767.55
Section 663B of the Criminal Code limits the amount of compensation payable, and
section 663AA defines the prescribed amount of compensation payable in particular
circumstances. Since the decision of the Court of Appeal in Chong v Chong Appeal No. 11658 of 1998, judgment delivered 13 August, 1999, it is clear that the prescribed amount is
to be calculated at the time that the order is made. That amount (as applicable in this case) is
presently to be found in s.167 of the WorkCover Queensland Act 1996 and stands as from 1
July, 1999, at $117,820.00.
Accordingly, I order that the respondent do pay to the applicant the sum of $74,767.55
by way of damages for criminal compensation together with the applicant’s costs of and
incidental to this application.
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