Hayward v. Whittaker

[2009] QDC 168

[2009] QDC 168

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 1516 of 2009

CHRISTOPHER RONALD HAYWARD           Applicant

and

MAX WILLIAM WHITTAKER                Respondent

BRISBANE

..DATE 10/06/2009

ORDER

HIS HONOUR:  This is an application for criminal compensation to be assessed for the applicant for personal injury suffered by the applicant as a consequence of a personal offence committed by the respondent against the applicant.  The personal offence committed by the respondent upon the applicant was the offence of doing grievous bodily harm.  That was committed on the 27th of February 2006. 

The applicant who was born on the 19th of March 1982 and is 27 years of age was with his partner travelling by motor vehicle from Caboolture to Donnybrook.  He and his partner came across the respondent.  At one point the vehicles stopped and there was a confrontation between the applicant and the respondent. 

The confrontation was a confrontation whereby the respondent alleged the applicant owed him money.  A fist fight commenced, however, the respondent armed himself with a knife and stabbed the applicant in the chest.  The applicant's partner also suffered personal injury as a result of a personal offence committed against her by the respondent and that is the subject of a separate application before me. 

The applicant could hear air coming from the hole in his chest.  The respondent fled the scene.  The applicant and his partner drove a short distance before they called the police and an ambulance.  When the ambulance officers arrived, they inserted a drain into his stab wound.  The wound was four centimetres in length and was bubbling with each breath. 

The applicant became panicked when he realised how much blood was coming out of his chest.  He thought he was going to die.  He was air-lifted to the Princess Alexandra Hospital for treatment.  He remained in hospital for five days.  He had a partial collapse of his lung as well as other injuries and abrasions to the upper part of his body.

He also sustained fractures to his fifth rib which was displaced and the sixth rib which was undisplaced.  He suffered pain and discomfort for some months following the assault.  He suffered flashbacks of the feeling of the thud of the steel as it penetrated his chest.  He became paranoid that something like that might happen again and he became stressed when he thought the respondent might try and hurt him again.  He suffered nightmares and would wake in a cold sweat.  He has a scar on a chest which serves as a constant reminder of the assault.  I have photographs before me showing the scarring to his body. 

The applicant consulted Mr Peter Stoker, a psychologist.  He explained to Mr Stoker his life both before and after the offence was committed.  Mr Stoker, in his report, confirms the flashbacks.  He also states the applicant has ruminated over whether he should have done this or that.  The offender's name triggers flashbacks.  He can feel the steel and thud of his chest when he thinks of it.  He is worried about a future assault.  He is more suspicious of people and men generally.  He becomes paranoid in certain situations.  He has to take himself out of situations when he cannot see people around him.  He is hyper-vigilant and cannot relax.  He has sleep disturbance due to negative thoughts about alcohol.  He ruminates over what happened and is unable to sleep well. 

However, his emotional health has improved over the last few months before Mr Stoker saw the applicant.  Mr Stoker concludes that the applicant has suffered a post traumatic stress disorder as a consequence of the incident.  He is of the opinion he has suffered a moderate degree of mental and nervous shock. 

The physical injuries are confirmed in a report from the Princess Alexandra Hospital from Dr Swan.  Dr Swan describes the wound as a serious stab wound to the left chest.  Without treatment there would have been serious and permanent compromise to his health if not his life. 

I am satisfied the respondent has been given notice of the application and that I can proceed to assess the compensation. I am mindful that the compensation to be awarded is intended to help the applicant and is not intended to reflect the compensation to which the applicant may be entitled under common law or otherwise. Further, the maximum amount of compensation is reserved for the most serious cases and the amounts provided in other cases are intended to be scaled according to their seriousness. See section 22 subsections 3 and 4 of the Criminal Offence Victims Act 1995.

I am satisfied the although there was a consensual fight, nevertheless, the production of the knife was an entirely different set of circumstances.  In those circumstances, the applicant did nothing directly or indirectly to contribute to his personal injuries.  I am satisfied they have been caused by the personal offence committed by the respondent upon the applicant.

I therefore assess compensation for the applicant under Item 25, stab wound together with scarring at 30 per cent, a sum of $22,500.  Also under Item 32, mental and nervous shock (moderate) at 20 per cent, a sum of $15,000.  A total, therefore, of $37,500.  I order the respondent to pay the applicant the sum of $37,500.

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