Hinds v Von Senden
[2006] QDC 480
•11 April 2006
DISTRICT COURT OF QUEENSLAND
CITATION:
Hinds v Von Senden [2006] QDC 480
PARTIES:
GAROLD HINDS
Applicant
AND
JAMES VON SENDEN
Respondent
FILE NO/S:
D84/04
DIVISION:
Civil
PROCEEDING:
Application for criminal compensation
ORIGINATING COURT:
Rockhampton
DELIVERED ON:
11 April 2006
DELIVERED AT:
Brisbane
HEARING DATE:
6 March 2006
JUDGE:
Nase DCJ
ORDER:
1. Order that James Von Senden pay to Garold Hines the sum of $31,050 by way of compensation pursuant to the Criminal Offence Victims Act 1995.
CATCHWORDS:
COUNSEL:
David Mills, solicitor, for the applicant
No appearance by or on behalf of the respondent
SOLICITORS:
Legal Aid Queensland for the applicant
This is an application for a compensation order pursuant to the Criminal Offence Victims Act 1995 (the Act) by Garold Hinds (the applicant). The respondent to the application is James Von Senden.
On 6 February 2006 the applicant obtained an order for substituted service of the proceedings on the respondent. The applicant has since complied with the steps required to be taken for substituted service of the proceedings on the respondent. The respondent nonetheless has not appeared on the application. Accordingly, it has proceeded in his absence on the materials placed before the court by the applicant.
On 13 September 2001 the respondent was convicted on indictment of an assault on the applicant[1].
[1] The charge was one of assault occasioning bodily harm while armed and in company.
The date of the offence was 23 May 1999. On that evening the applicant, who was a self-employed plumber of 47 years, became involved in an argument with three young aboriginal men. At the time the three young men were living in a house adjacent to the applicant’s home but on the opposite side of the street.
The argument between the applicant and the group of three commenced after the group yelled out abuse at the applicant’s son Michael. The group moved across the road towards the applicant’s home while continuing to yell abuse. At that stage the applicant was still within his property. As the group approached the applicant displayed a .22 calibre rifle. This caused the group to retreat back to the opposite side of the street. The applicant then walked out of his property without the rifle. Soon afterwards the inevitable confrontation escalated into a physical fight between the applicant and one of the group. In the fight which followed, the applicant was assaulted by all three men. During the fight he was struck a number of times with a fence paling and hit by a bicycle thrown at him when he was on the ground.
The episode ended when the applicant’s son went to his assistance and the group withdrew.
The applicant was quite badly beaten. He was taken to the Rockhampton Base Hospital where he was admitted and kept for treatment until 28 May 1999 (five days).
In a report from the Rockhampton Base Hospital (Dr Self), the four major injuries suffered by the applicant were summarised as follows:
1. Left chest injury: A 30 per cent left pneumothorax, which was treated with intercostal catheter drainage. No rib fractures were noted radiographically, but clinically left rib fractures were located.
2. Facial bruising: Peri-orbital swelling and bruising around the right eye, although with no associated eye injury or fracture noted.
3. Right shoulder injury: A soft tissue injury with no underlying bony damage.
4. Left forearm: Another soft tissue injury to the left forearm with swelling and bruising.
On 13 September 2001 the respondent was convicted in the District Court at Rockhampton of assault occasioning bodily harm with circumstances of aggravation. The claim for a compensation order is brought on the respondent’s conviction. The material suggests another of the group was also charged with the assault but he has not yet been brought to trial.
I am satisfied the applicant suffered 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.
Under the legislative scheme established by the Act 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)).
The papers placed before the court adequately identify the injuries suffered by the applicant. At hospital the injuries documented included significant swelling and bruising to his face and left forearm. Bruising is dealt with in the compensation table in items 1 (minor/moderate) and 2 (severe). The respective ranges provided are 1 – 3 per cent and 3 – 5 per cent of the scheme maximum. On the basis the applicant’s bruising falls in the moderate range, 2 or 3 per cent of the scheme maximum is an appropriate allowance. In the circumstances 3 per cent is allowed.
The applicant suffered a punctured left lung (a 30 per cent pneumothorax) and suspected rib fractures to the left side. This type of injury if left untreated is potentially dangerous. While in casualty oxygen and morphine were administered. A chest drain was subsequently inserted under surgery and left in for two days. The appropriate category in the compensation table is “neck/back/chest injury”. Items 21 (minor), 22 (moderate) and 23 (severe) allow ranges of 2 – 7 per cent, 5 ‑ 10 per cent, and 8 – 40 per cent respectively for these items. The collapsed lung apparently healed without complication. In these circumstances an allowance towards the top of the moderate range and bottom of the severe range is reasonable. 10 per cent of the scheme maximum is allowed for this injury.
The applicant’s shoulder injury has proved to be far more serious in terms of the overall functional impairment, pain, and effect on his life. The injury was originally diagnosed as a soft tissue injury with no underlying damage. With hindsight it is probable the applicant suffered a significant rotator cuff tear to his shoulder during the assault.
While still recuperating the applicant undertook treatment at a physiotherapy centre (CQ Physio Group) for his shoulder injury. At that stage the shoulder was considered quite problematic. It was both painful and unresponsive to treatment. As a consequence he was advised to consult an orthopaedic surgeon by the physiotherapy centre. It seems he did not follow through on that advice.
At the hearing a report was placed before the court from an orthopaedic surgeon (Dr South). Dr South, whose opinions I accept, noted as follows:
“Examination
Mr Hines had a prominent right AC joint. There was quite marked wasting of the supra and infraspinatus muscles. The shoulder was generally mildly tender. Flexion was 150 degrees and accompanied by significant crepitations and by pain. Abduction was 150 degrees and was also accompanied by crepitations and pain. Adduction was 20 compared to 30, extension 20 compared to 30, internal rotation to L5 compared to T11 and external rotation 15 compared to 30. Biceps power was reasonable, however, activation in certain positions caused proximal long headed biceps pain. The supra and infraspinatus muscles appear to have grade 3 power. The subscapularis muscle was difficult to test because of fixed deformities in the glenohumeral joint.
Radiological Investigations
X-rays dated 18 April 2005 were viewed. There were a number of significant changes including glenohumeral arthritis and glenohumeral spurring. The possibility of a minimally displaced inferior glenoid fracture was noted. There were inferior AC joint spurs and there was evidence of an inferior acromial spur. The subacromial space was reduced.
An x-ray report dated 24 September 1999 has been sighted. It was requested by Dr Tom Conaghan, General Practitioner. This report suggested, ‘No evidence of any previous injury to the right shoulder joint. Some OA changes are seen involving the glenohumeral joint and the right AC joint. No soft tissue calcification is seen.’ This suggests that there was a degree of pre-exiting but minimally symptomatic osteoarthritis in the shoulder joint prior to the assault.”
Dr South reported that the applicant has suffered a moderate loss of range of movement and a severe loss of function with significant pain. The applicant continued working as a plumber, although experiencing significant difficulties using his right arm, especially when it was necessary to work above shoulder height. He has the capacity to raise his arm overhead, but little capacity to lift weight overhead. His shoulder is painful and clicks and cracks with movement. He is now unable to play tennis and squash (he is naturally right-handed). Dr South believes the applicant will always have discomfort, loss of active and passive range of movement, and weakness in the shoulder with a probability his symptoms will steadily increase with time. Part of the problem is that the injury has probably led to further progressive degenerative changes. Surgically the applicant’s options are both expensive and limited as the rotator cuff injury is not possible to repair, and a conventional shoulder replacement may well fail because of the significant rotator cuff tear. In terms of an assessment Dr South felt the applicant’s disability is of the order of 16 per cent. This is equal to a 10 per cent impairment of the whole person.
The appropriate item in the compensation table is item 13 (fracture/loss of use of shoulder). The range provided is 8 – 23 per cent of the scheme maximum. The injury on a notional scale of minor, moderate and severe falls, I think, in the upper part of the moderate range or lower part of the severe range. The loss of function is permanent. In the circumstances 18 per cent of the scheme maximum is allowed for this injury.
The final claim is for mental or nervous shock. Mental or nervous shock is defined as compensable injury under the Act. In support of the claim a report from a psychiatrist was placed before the court.
About two months after the incident the applicant started to withdraw from normal interaction with others, and became preoccupied with the assault. He felt anger and fear, and suffered from disturbed sleep with nightmares. In about August 1999 he was prescribed an anti-depressant by his general practitioner. About four months after the assault he found his feelings of depression and anger were affecting his ability to run his plumbing business. Towards the end of the 2001 year he walked away from his own business and took a job working for a friend. His relationship with his wife also broke down, leading to a separation. Both these events Dr Flanagan believed were direct consequences of his mental condition.
Dr Flanagan thought the applicant, in the period following the assault, developed a post traumatic stress disorder accompanied by major depression. At the date of his report (22 November 2004) he thought the depression had largely resolved and the symptoms associated with the post traumatic stress disorder were less severe. The applicant has remained in employment and is now in a stable relationship with another woman. He has a good relationship with his children and a civil relationship with his former wife. Despite these improvements Dr Flanagan believes the applicant’s mental condition will not completely resolve and his long term prognosis is guarded.
Mental or nervous shock is dealt with in items 31 (minor), 32 (moderate) and 33 (severe) of the compensation table. In this case because the applicant has been able to maintain his essential family relationships, and enter into a new relationship; and, at the same time, ultimately function successfully in the work force, his condition does not fall in the severe category (item 33). The appropriate item is that for moderate cases of mental or nervous shock (item 32). An award in the middle of the moderate range is I think appropriate. In the circumstances 15 per cent will be allowed. The total award is therefore 46 per cent of the scheme maximum. This calculates out as $34,500. A court in assessing compensation is required to take into account whether any conduct on the part of the applicant may have contributed, directly or indirectly, to the injury suffered by the applicant.
In this case the applicant’s award will be reduced by 10 per cent. When the applicant produced the rifle to the group of three men they retreated across the street towards their own place. At that point the applicant put the rifle down and left his yard to confront the group. There was no necessity for him to confront the three men, given the level of abuse exchanged between them. The fight that broke out almost immediately on confronting one of the young men was both foreseeable and unnecessary. The applicant must bear some responsibility for this fight.
Order that James Von Senden pay to Garold Hines the sum of $31,050 by way of compensation pursuant to the Criminal Offence Victims Act 1995.
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