Hynes v Rowe

[2006] QDC 486

DISTRICT COURT OF QUEENSLAND

CITATION:

Hynes v Rowe and Anor [2006] QDC 486

PARTIES:

MATTHEW WILLIAM HYNES

Applicant

V

STEVEN JOHN ROWE

First Respondent

AND

RUEBEN EDGAR DOLPHIN

Second Respondent

FILE NO/S:

D112/05

DIVISION:

Civil

PROCEEDING:

Application for criminal compensation

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

1 December 2006

DELIVERED AT:

District Court, Brisbane

HEARING DATE:

20 November 2006

JUDGE:

Nase DCJ

ORDER:

It is ordered that Steven John Rowe and Rueben Edgar Dolphin pay to Matthew William Hynes the sum of $17,500 by way of compensation pursuant to the Criminal Offence Victims Act 1995

CATCHWORDS:

COUNSEL:

Mr J. Davies, solicitor, for the applicant

SOLICITORS:

John Davies and Co for the applicant

There was no appearance on behalf of the first respondent

The second respondent appeared on his own behalf

1. This is an application for a compensation order by Matthew William Hynes (Hynes) pursuant to the Criminal Offence Victims Act 1995 (the Act). The respondents to the application are Steven John Rowe (Rowe) and Rueben Edgar Dolphin (Dolphin).

1. While Rowe elected not to appear or to be represented at the hearing of the application, Dolphin appeared in person.  He presented oral submissions to the court on the application and spoke briefly of his own personal circumstances.

1. The respondents were convicted of a charge of assault occasioning bodily harm in the District Court at Toowoomba on 18 October 2004.  Both men were fined.[1]

   [1]Rowe was fined $750, and Dolphin $1,000.  No convictions were recorded.

1. The assault was committed in the early hours of the morning of 24 March 2002 at Toowoomba.  The assault itself was relatively brief.  Hynes knew Rowe, but did not know Dolphin.  At one stage during the evening, Hynes had spoken to Rowe, who was drinking with Dolphin.  Later in the evening, all three men (and others) found themselves in Margaret Street, Toowoomba.  Although there is some dispute as to what exactly was said, Rowe confronted then suddenly punched Hynes heavily to the face causing him to fall to the ground.  When Hynes endeavoured to rise to his feet, he was then punched a number of times by Dolphin.  The blows were obviously quite heavy lows, as Hynes lost consciousness in the assault. An ambulance was subsequently called and Hynes was transported to Toowoomba Base Hospital.

1. The Act gives a victim of a personal offence, where the offender has been convicted on indictment, a right to apply for a compensation order against the offender (or offenders).  As an assault is a personal offence, when Rowe and Dolphin pleaded guilty on indictment to the assault, Hynes became entitled to apply for a compensation order.

1. As the compensation is “for”[2] any injury (injuries) caused to a victim, the amount of compensation is determined primarily by the nature and seriousness of any injury.  The act sets out a reasonably rigid framework for assessing compensation.  The compensation payable is calculated by reference to a compensation attached to the Act. The method of assessment involves relating any injury suffered by an applicant for compensation to a corresponding item in the compensation table. 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 24(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)).

   [2]S 19(1)(a) Criminal Offence Victims Act 1995.

1. The personal circumstances of an offender are therefore irrelevant to the assessment of compensation.  In this case, Dolphin is a young man who is endeavouring to establish his own business and support his wife.  He does seem to be a person of good character.  His personal circumstances and character, however, are irrelevant to the calculation the court is required to perform under the Act.  Accordingly, it is to the applicant’s injuries that I must now turn.

1. At the sentence hearing the prosecutor said that Hynes suffered bruising to the ribs, a swollen left cheek, and a wound to the back of the head.  He also suffered concussion.  Hynes saw his general practitioner on 28 March 2002 (Dr Hopson).  Dr Hopson’s report confirms those injuries.

1. Mr Martin’s written submissions break the claim down into four separate injuries:  the bruising to the body and head together with the laceration to the back of the head, the head injury, mental or nervous shock, and a claimed loss of hearing.

1. Items 1 and 2 of the compensation table set out the ranges for bruising and lacerations. The range for item 1 (minor/moderate) is 1-3 per cent of the scheme maximum,[3] and for item 2 (severe) is 3-5 per cent. In this case, the applicant suffered bruising to the head, face and ribs, as well as a laceration across the back of his head. I think an allowance at the top of the moderate range or bottom of the severe range is appropriate. In all the circumstances, 3 per cent will be allowed for the general bruising and the laceration.

   [3]The scheme maximum is $75,000.

1. In support of the claim for the head injury (item 9) a report from a neurologist (Dr Morley) was placed before the court.

1. A CT brain scan was performed on 27 March 2002.  This was reported as showing a suspected small contusion (bruising) in the left cerebellar region, with no other abnormality.  A second CT brain scan was performed on 3 April 2002.  This demonstrated partial resolution of his suspected left cerebellar contusion.  Although a follow‑up CT brain scan was recommended, no further CT scan was ever performed.

1. At the date of his examination (7 April 2005), he complained to Dr Morley of continuing headaches.  He said he develops a headache several days a week.  The headaches respond to one or two doses of Panadol.  Dr Morley thinks the headaches he suffers are a type commonly experienced after concussion.  He noted that it is unusual for post‑concussion headaches to persist for as long as three years after an incident, but in the absence of further investigation, the headaches should be assessed to be post‑concussional.

1. The applicant also complained of intermittent giddiness since the assault.  At the examination he said he had not experienced an episode of giddiness for a period of three months.  Dr Morley thinks the episodes of giddiness are possibly due to damage to the vestibular apparatus (the “balance organ”) of the inner ear.

1. The relevant item in the compensation table is item 9 – head injury (no brain damage).  The range provided is 5-15 per cent of the scheme maximum.  Essentially the claim is for the concussion injury (and the consequential post‑concussional headaches).  The giddiness and the possible hearing loss are possibly related to the assault, although in the absence of medical evidence even this is not entirely clear.

1. Dr Hopson, who has been the applicant’s GP for about 10 years, noted in his report (12 February 2005) that he had “followed these injuries for some time and he made an eventual and gradual recovery.”  The applicant’s complaints to Dr Morley are not entirely consistent with Dr Hopson’s observation.  It may be, of course, that when he spoke to Dr Morley he tended to emphasis the symptoms of which he complained.

1. An allowance towards the middle of the range is in the circumstances appropriate.  10 per cent of the scheme maximum will be allowed.

1. The applicant also claims for mental or nervous shock.  Mental or nervous shock is a compensable injury under the Act.  This aspect of the claim is supported by a report from a psychiatrist (Dr Venugopalan).  At the time of the assault, the applicant was unemployed and on sickness benefits for anxiety and depression.[4]  At the time of his interview with Dr Venugopalan, he reported a happy relationship with his wife, and denied any significant personal stress apart from the financial stress of maintenance payments for three older daughters from previous relationships.  His main complaints at interview were sleep difficulties, difficulty in falling asleep, and waking up early feeling anxious.  He also reported periods of severe anxiety, sometimes for no obvious reason.

   [4]Dr Morley’s report p 2.

1. Dr Venugopalan did think the applicant’s symptoms, following the assault on 23 March 2002, were consistent with a diagnosis of post‑traumatic stress disorder, although his symptoms at the time of interview (7 April 2002) were mild and did not impair his domestic life or occupational functioning.

1. In interview Hynes told Dr Venugopalan that for several months after the assault he could not stop thinking about the assault.  At the time he was already under treatment by Dr Hopson for anxiety and depression.  His alcohol consumption increased to a bottle of spirits a day, and he started gambling.  Three months after the assault he left his partner and their two children.  He then started injecting himself with speed.  His father died about seven months after the assault.  After his fathers death he then moved in with his mother for about six months until he travelled to Perth.  He told Dr Venugopalan he was too anxious to go out by himself and search for a job.  He said that after his move to Perth, he felt more comfortable and secure.  He continued to drink excessively but stopped using illegal drugs.

1. The diagnosis of post‑traumatic stress disorder is based entirely on the applicant’s account of his past symptoms.  On balance, I accept the professional opinion of Dr Venugopalan.  There is no contrary opinion and his evidence was not directly challenged.  As I interpret his report, in reality a large area of uncertainty[5] exists as to the severity of any psychiatric condition in the year after the assault.

   [5]The uncertainty arises from the applicant’s excessive use of alcohol and illegal drugs over this period, and from his pre‑existing anxiety and depression.

1. The ranges for mental or nervous shock are set out in the compensation table in items 31 (minor), 32 (moderate), and 33 (severe).  The task the court is required to undertake is to reach a judgment on the relative severity of any mental or nervous shock caused to the applicant.  In assessing the severity of any mental or nervous shock, the fact he is now basically unaffected by any residual symptoms is an important limiting feature.  The other uncertainties in assessing the severity of the condition justify a cautious approach.  In all the circumstances, an award at the top of the minor range or bottom of the moderate range is reasonable.  10 per cent of the scheme maximum will be allowed for mental or nervous shock.

1. A separate claim is advanced for his apparent hearing loss and giddiness.  I think it better to deal with these claims as part of the allowance for head injury under item 9, and I have done that.

1. The assessment of compensation under the compensation table therefore works out as 23 per cent of the scheme maximum.  This calculates out as $17,500.

1. The court in assessing compensation is required to consider whether any conduct on the part of the applicant may have contributed, directly or indirectly, to the injuries suffered by him.  In carrying out this exercise the court is confined to the facts as they were placed before the sentencing court.  On those facts, there was no relevant conduct on the part of the applicant that should result in a reduction in the award to which he is otherwise entitled.

1. Mr Martin in his written submissions made some attempt to apportion the claim between the two respondents.  I do not see any point in apportioning the payment of the order for compensation between the respondents.  Accordingly, both will  be jointly and severally liable for the award.

Order

1. It is ordered that Steven John Rowe and Rueben Edgar Dolphin pay to Matthew William Hynes the sum of $17,500 by way of compensation pursuant to the Criminal Offence Victims Act 1995.