Graham v Ross

[2010] QDC 153

DISTRICT COURT OF QUEENSLAND

CITATION:	Graham v Ross [2010] QDC 153
PARTIES:	KEVIN HUGH GRAHAM
(Applicant) v
DANIEL EDWARD ROSS
(Respondent)
FILE NO/S:	33 of 2008
DIVISION:
PROCEEDING:
ORIGINATING
COURT:	IPSWICH DISTRICT COURT
DELIVERED ON:	22 April 2010
DELIVERED AT:	Ipswich
HEARING DATE:	22 March 2010
JUDGE:	Bradley DCJ
ORDER:

Order that the respondent pay to the applicant the sum of $30,000.00 by way of criminal compensation. The respondent is given leave to apply to re-open the application upon the giving of seven days’ notice to the applicant.

CATCHWORDS:	CRIMINAL LAW – PROCEDURE – CRIMINAL INJURIES COMPENSATION – QUEENSLAND – where the respondent was convicted of doing the applicant grievous bodily harm – where the respondent acted well beyond self defence in the circumstances – where the applicant is permanently affected by the injuries sustained.
Criminal Offence Victims Act 1995 (Qld).
REPRESENTATIVES:	A West of Counsel instructed by Ian Berry, solicitor for the applicant
No appearance for the respondent

1. On 15 February 2007 in the District Court at Ipswich, the respondent was convicted on his plea of guilty of doing the applicant grievous bodily harm. The offence was committed on 3 June 2005 at Leichhardt.

2. The applicant now seeks an order for compensation for the injuries suffered by him because of the offence pursuant to s 24 of the Criminal Offence Victims Act 1995 (the Act).

3. As the applicant’s representatives had difficulty locating the respondent for service, an order for substituted service was made by this court on 20 October 2008. Service in accordance with that order was made on 4 February 2009. There was no appearance by or on behalf of the respondent at the hearing of this matter although it is not clear to me from the material whether the respondent was given notice of the new date of hearing. Accordingly I will give the respondent leave to re-open the proceedings upon the giving of seven days’ notice to the applicant.

4. I was not the sentencing judge, but from the transcript of the sentence proceedings the facts placed before the court in relation to the offence were that on 3 June 2005 the applicant went into a food store at Leichhardt. He was standing outside the food store talking with friends when the respondent walked out of the store and got into the passenger side of a vehicle. The applicant did not know the respondent although he had seen him at the store one or two weeks previously.

5. The respondent began to yell abuse at the applicant and his companions. The respondent got out of the car and approached one of the applicant’s companions and a consensual fight ensued between those two men. The applicant then got involved.

6. The applicant tackled the respondent and knocked the respondent onto some sort of game machine located outside the entrance of the store. This caused the applicant’s sunglasses to fall off his head. The applicant returned to his sunglasses and bent down to pick them up. As he was doing so the respondent kicked the applicant in the face causing significant injury to the applicant.

7. The prosecution accepted the plea of guilty from the respondent on the basis that he initially believed he was acting in self defence, but accepted, by his plea of guilty, that the fight was over and that the kick to the face was “well beyond what was required in the circumstances”.

8. When sentencing the respondent Judge Kingham noted “the Crown doesn’t seek to lay the blame on you for the fight starting. Perhaps it is not clear how it commenced. Certainly the fight between you and the complainant I am taking as having occurred when the complainant intervened with a fight that was already underway. That shows that it wasn’t a completely unprovoked attack as some of these GBH charges can be.” Later in her remarks however her Honour said to the respondent “… you immediately realised you had really gone well beyond what could be considered necessary for self defence in a fight of this nature.”

9. Although it is clear the applicant did voluntarily engage in an altercation with the respondent, it is also clear that at the time the respondent delivered the kick to the applicant’s face the fight was essentially over. In those circumstances I am satisfied that there was no behaviour on the part of the applicant which contributed to his injuries and any award for compensation should not be reduced to reflect his own behaviour.

10. When the applicant was examined at the Mater Hospital he was found to have a decreased sensation of his right inferior orbital nerve. He was suffering double vision in an upward and downward gaze and had a right orbital floor fracture. Surgery was required to repair the fracture and he had titanium mesh and screws inserted.

11. The applicant has been examined by Dr Kevin Vandeleur, an ophthalmic surgeon, and I have before me reports from Dr Vandeleur dated 19 October 2006 and 18 April 2007. Dr Vandeleur’s diagnosis of the injuries received by the applicant as a result of the offence are:

    “Blow out fractures of the right orbit with entrapment of orbital

    contents into the orbital fractures.

    Damage to extra ocular muscles of right eye resulting in scarring and motility of the right eye and diplopia on downward gaze.

    tethering of extra ocular muscles of right eye.

    He also had fractures of nasal bones and damage to the right infra orbital nerve.”

12. It is Dr Vandeleur’s opinion that the applicant’s current condition has improved to the maximum extent and is permanent. No further surgical treatment will improve the ocular motility. Dr Vandeleur’s assessment of the permanent impairment is that the diplopia is regarded as 100% loss of efficiency of the injured eye and that a 100% loss of efficiency of an injured eye is a 25% loss of efficiency of the visual system and a 24% whole personal impairment.

13. Dr Vandeleur notes “the very severe disturbance of motility that Mr Graham experiences in the vast majority of patients is extremely disabling and the 25% impairment of visual function is a real description of the disability and impairment. Being youthful and adaptable Mr Graham has made a remarkable adaptation to the impaired motility. By moving his head and not the gaze of his eyes he is able to direct his visual process downwards without diplopia. Such adaptation is very unusual.” However, “His ability to adapt to the impairment may decrease with age and if he were to develop any problems with neck motility”.

14. In an affidavit sworn on 11 March 2008 and filed in support of his application, the applicant states that he has suffered the following:

1.	Blurring to his eyes.
2.	Swelling around his eyes particularly his right eye (where the operation scar is located).
3.	Scarring.
4.	Headaches.

As at the date of the swearing of his affidavit the applicant states that driving at night is difficult and his eyes seem to him to be ultra sensitive to light. This causes eye strain. He also suffers from headaches which seem to develop from his strained eyes. The applicant’s injury has had an adverse effect on his ability to carry out his duties at work (although it appears he is still able to be gainfully employed), and his ability to play his guitar.

1. The applicant is entitled to compensation in accordance with the Compensation Table which is Schedule 1 to the Act as follows:

Item 3 – fractured nose (no displacement) 5%	$3,750.00
Item 7 – facial fracture (moderate) including scarring 15%	$11,250.00
Item 29 – Loss of vision (one eye) 20%	$15,000.00

TOTAL $30,000.00

1. I order that the respondent pay to the applicant the sum of $30,000.00 by way of criminal compensation. I give the respondent leave to apply to re-open the application upon the giving of seven days’ notice to the applicant.