Dowling v McDermott

[2004] QDC 415

DISTRICT COURT OF QUEENSLAND

CITATION:

Dowling v McDermott & Anor [2004] QDC 415

PARTIES:

PETER WALTER DOWLING
(Applicant)
v
 IAN CECIL McDERMOTT
(First Respondent)

And

TERRY McDERMOTT

(Second Respondent)

FILE NO/S:

D13 of 2004

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Criminal Compensation

ORIGINATING COURT:

District Court, Mount Isa

DELIVERED ON:

16 September 2004

DELIVERED AT:

Mount Isa

HEARING DATE:

10 September 2004

JUDGE:

Tutt DCJ

ORDER:

That the respondents or either of them pay to the applicant the sum of $7,312.50 by way of compensation for injuries caused by them to the applicant for which the respondents were convicted by this Court on 13 March 2002.

CATCHWORDS:

Criminal compensation – assault in company – injuries to teeth and bruising – compensation Schedule 1 – applicant’s contribution to the injuries by own conduct – mental or nervous shock.

Criminal Offence Victims Act 1995 ss. 24, 25(6) and (7) and 31.

Ferguson v Kazakoff [2000] QSC 156.

COUNSEL:

Ms J Brasch for the applicant.

Mr R East for the first respondent.

SOLICITORS:

Anderson Telford Lawyers for the applicant.

Rod Madsen Solicitors for the first respondent.

Second respondent appeared in person.

Introduction

1. The applicant, Peter Walter Dowling, claims compensation under Part 3 of the Criminal Offence Victims Act 1995 (“the Act”) for personal injuries he sustained on or about 18 June 2000 arising out of the criminal conduct of the first and second respondents, Ian McDermott and Terry McDermott, both of whom were convicted by this court at Mount Isa on 13 March 2002 for causing bodily harm to the applicant on or about the said 18 June 2000. The first respondent was legally represented. The second respondent was present in person in court.

1. The application for compensation is made pursuant to s 24 of the Act and is supported by the following material:-

(a)        the affidavit with exhibits of the applicant, sworn 27 July 2004 and filed in this court on 3 August 2004; and

(b)        the affidavit with exhibits of John Andrew Bolton, solicitor sworn 21 May 2004 and filed in this court on 3 August 2004.

Facts

1. The applicant swears that he was the victim of an assault by the respondents in the car park of the Leichhardt Hotel at Cloncurry on 18 June 2000.  The altercation included on the first occasion being grabbed by the first respondent and being punched several times with the second respondent then joining in also punching the applicant resulting in his falling to the ground with both respondents then continuing to punch and kick him.

1. The evidence is not precise as to the extent of the applicant’s injuries in this melee but it is believed that his injuries at this time were not extensive.

1. The further evidence is that the fight then broke up and the applicant got to his feet.  The applicant then “ran towards Ian McDermott who was standing a few metres away and threw a punch at him”.[1]

   [1] Page 6 of the transcript, exhibit “D” to affidavit of J Bolton.

1. The first respondent then retaliated and punched the applicant to the ground and the second respondent again joined in and began to kick the applicant to the head and chest while the first respondent kicked the applicant to the body.

Injuries

1. The applicant’s injuries are described in exhibits “F” and “H” to the affidavit of John Andrew Bolton being reports from the Cloncurry Hospital and Dr William Bruce, prosthodontist, respectively.

1. It would appear that the applicant sustained the following injuries:

1.          Loss or damage to:

(a)        Tooth 12 – fractured enamel and dentine;

(b)        Tooth 11 – porcelain/gold fixed prosthesis;

(c)        Tooth 21 – porcelain/gold fixed prosthesis;

(d)        Tooth 22 – 80% completely lost, root fragments remain in jaw bone.

2.          Multiple abrasions over face;

3.          7cm bruise over forehead;

4.           Bruise over right side cheek;

5.          Small laceration under chin.

1. The applicant requires extensive remedial work to restore his teeth with the insertion of implants or a bridge to replace the two original teeth lost as well as the two teeth (11 and 21) fixed by prosthesis at the time of the assault.

Facial disfigurement

1. Counsel for the applicant further submits that the applicant is entitled to an award because of facial disfigurement (moderate) under Item 27 of the table.

1. To support this claim I was referred to the evidence of Doctor Bruce who said in paragraphs 9 and 10 of his reports:

“9. Mr Dowling has suffered a cosmetic deficit for the loss of his upper anterior teeth.  This could be regarded as a temporary facial disfigurement in relation to the loss of these teeth.

10. Because such facial disfigurement would be regarded as temporary then I would consider that this facial disfigurement would be rated as minor or moderate.”[2]

[2] Exhibit “H” to affidavit of J Bolton.

1. On this issue, counsel for the first respondent essentially argued that before the applicant could be entitled to an award under this category there would need to be a rupture of the skin causing a hole and resultant scarring which would constitute facial disfigurement within the meaning of the table.

1. I am of the view that the term “facial disfigurement or bodily scarring” in the compensation table of Schedule 1 of the Act refers to a permanent condition not a temporary one whether it be described as a facial disfigurement or cosmetic deficit as in this case.

1. As the applicant’s alleged facial disfigurement was “temporary” at best I make no award of compensation under this category.

Mental or nervous shock

1. I am also asked to assess compensation under the general heading of “mental or nervous shock”.

1. The applicant was examined by Ms Hatfield, psychologist, on 7 October 2003 (almost 3 years and 4 months post injury) and a report of the assessment dated 27 November 2003 is exhibit “J” to the affidavit of John Andrew Bolton.

1. Ms Hatfield’s diagnosis, so far as her speciality is concerned, is that there is no indication in the applicant’s profile of “any specific clinical difficulties which might warrant psychiatric diagnosis”.[3]  At the time of examination it would appear that “the main impacts of the assault related to his loss of income”.[4]

   [3] Page 3 of the report, exhibit “J” to the affidavit of J Bolton.

   [4] Ibid, page 4.

1. The applicant’s counsel concedes there is no diagnosable injury under this category but submits that I am entitled to consider the claim because the applicant has described himself as “worthless”, “experiencing a depressed state”, “confused” and “angry”. By inference the claim is therefore one under s 25(6) of the Act.

1. As to whether this applicant has suffered mental or nervous shock has to be measured in the light of the authorities on point and a very useful guide is to be found in the matter or Ferguson v Kazakoff [2000] QSC 156 where Thomas JA said at [21]:

“It is extremely difficult to define the point at which mental consequences to a claimant from a crime become compensable as “mental or nervous shock”.  I consider however, that if nothing more is shown than fear, fright, unpleasant memories or anger toward an offender, or a combination of such reactions, the claimant has not shown that he or she suffered nervous shock.  Unless the court is affirmatively satisfied that mental or nervous shock has been suffered compensation should not be awarded for such reactions.”

1. There is no convincing evidence before me that the applicant has suffered mental or nervous shock nor any other injury which might come within s25(6) of the Act and I make no order under these categories.

Applicant’s contribution

1. In deciding the amount of compensation payable to the applicant I must also take into account the behaviour of the applicant that directly or indirectly contributed to the injury (see s 25(7) of the Act).

1. I have referred to the circumstances of the confrontation in paragraphs [3] to [7] above.  Obviously the applicant did not consent to the extent or severity of the retaliation of the respondents in the second assault which would appear to have resulted in the applicant’s more serious injuries but nonetheless, he could have retreated after the first encounter and saved himself from further punishment by not reigniting the fight.

1. I am of the opinion that his contribution to his own injuries should be assessed at one-quarter (25%) and his quantum of compensation reduced accordingly.

Categories of injuries

1. The applicant’s injuries fall under the following categories of injury in Schedule 1 of the Act, namely:

(a)        Item 5 – Loss or damage of teeth (percentage of scheme maximum 1% - 14%);

(b)        Item 1 – Bruising / laceration etc (minor / moderate) (percentage of scheme maximum 1% - 3%)

1. Taking all relevant matters into account I assess the quantum of the applicant’s compensation for the bodily injuries he sustained on or about 18 June 2000 as follows:

(a)   In respect of Item 5, the sum of $7,500.00 representing 10% of the scheme maximum; and	$7,500.00
(b)   In respect of Item 1, the sum of $2,250.00 representing 3% of the scheme maximum.	$2,250.00
TOTAL (before contribution)	$9,750.00

1. In view of my conclusions as set out in paragraph [24] above, I therefore order that the respondent pay to the applicant the sum of $7,312.50 by way of compensation for the injuries he sustained. 

1. In accordance with section 31 of the Act, I make no order as to costs.