James v. Valdivia

[2010] QDC 101

[2010] QDC 101

DISTRICT COURT

CIVIL JURISDICTION

JUDGE SAMIOS

No 3789 of 2009

TODD JAMES	Applicant
and
DANIEL HUGO VALDIVIA	Respondent

BRISBANE

..DATE 02/03/2010

ORDER

HIS HONOUR: This is an application for criminal compensation to be assessed pursuant to the provisions of the Criminal Offence Victims Act 1995. The applicant was born on the 15th April 1981. He was 25 years of age when he suffered his personal injuries. He is now 28 years of age. He suffered his personal injuries on the 9th March 2007 when the respondent committed an unlawful assault and doing him bodily harm whilst armed with an offensive instrument upon the applicant.

The basic circumstances are that the applicant was in his unit and the respondent came to his unit and when the applicant opened the door the respondent beat him around the head with a dumb bell bar.  Fearing for his life the applicant ran to the balcony and jumped off landing about 3 to 4 metres below suffering further injuries.

The best that can be determined about any motive for the attack is that the applicant was going out with a young lady who used to go out with the respondent.  Except for that, no other motive can be determined on the evidence before me.  The applicant believed at all times that the relationship between the respondent and his young lady had ended.

The applicant was seen at the hospital Emergency Department.  He was seen to have a laceration to the front of the scalp and also to the back of the scalp.  The front laceration being approximately 3 centimetres long and the back of the scalp being approximately 5 centimetres long.
He also had a right elbow proximal ulna fracture and a left scaphoid fracture.  He was taken to the operating theatre on 10 March 2007 and had tension band wire and internal fixation of his right proximal ulna fracture and a plaster cast applied to his left forearm.  He was taken back to theatre on the 19th March 2007 for percutaneous internal fixation of his left scaphoid fracture.  He was discharged from hospital on that date.  He was subsequently followed up at the hospital and required physiotherapy.

The applicant still has the stainless steel retention band in his right elbow and a scar and an affixation screw in his left wrist.  He still experiences pain in his right elbow, especially when he bends it, and he cannot lift anything heavy with his right arm.  He has been advised that the retention band could be removed in due course with more surgery.

He has been unable to play sport and socialise with his friends.  He also suffered chips to the top and bottom of his front teeth as a result of the assault.  He has the scarring to the elbow, which is apparent on the photographs contained in the evidence before me.  His elbow has healed with a deformity.

He also no longer feels safe at night and has a feeling of insecurity even during the day and he does not trust anyone.  The applicant has been examined by Ms Yoxall, a psychologist.  She has concluded, and I accept this opinion, that the applicant has suffered a post-traumatic stress disorder and suffers from a dysthymic disorder.  The symptoms included mood disturbance, disturbed sleep, chronic worry and rumination, that the perpetrator will ultimately attempt to kill him, fear about safety once the perpetrator is released from prison, obsessive checking of locks and security of home, hypervigilance, frustration and anger, reduction in motivation and energy, avoidance of leaving home without the safety of the company of another, exaggerated startle response, self-consciousness about his appearance, amongst other symptoms.

The respondent has been served with the application and supporting evidence.  I am satisfied I can proceed to assess the compensation for the applicant.  The applicant did nothing to directly or indirectly contribute to his injuries.  While it is clear he suffered the serious aspects of his injuries, including the fractures when he fell from the balcony, I accept he did so out of genuine fear and that that was the only alternative course available to him.  Therefore, I find he did not directly or indirectly contribute to his injuries.

I bear in mind that on an application of this kind the compensation provided to the applicant 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 provided under this part 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 Act.  I'm also satisfied the application, having been filed on the 24th December 2009, is within time notwithstanding the new legislation.

In all the circumstances, I assess the applicant's compensation under item 1, bruising, laceration et cetera minor/moderate at 2 per cent, a sum of $1,500.  While I acknowledge the applicant has suffered significant bruising and lacerations they were suffered in other areas which will be compensated under other items.  To do otherwise would be to double compensate the applicant, which is not permitted.

I also assess compensation under item 5, loss or damage of teeth, at 2 per cent, which is a sum of $1,500.  I also compensate the applicant under item 15, fracture, loss of use of arm, wrist, minor, 8 per cent, which is a sum of $6,000.  Also, under item 16, fracture, loss of use of arm, wrist, displaced and immobilised, 20 per cent, which is a sum of $15,000.

Also, under item 27, facial disfigurement or bodily scarring, minor/moderate, 2 per cent, a sum of $1,500.  And then under item 33, mental and nervous shock, sever, 20 per cent, a sum of $15,000, making a total of $40,500.  I order the respondent to pay the applicant the sum of $40,500.

I cannot, under the legislation, order the respondent to pay the applicant's costs.  Anything further, Ms Cherikova?

MS CHERIKOVA:  No, thank you, your Honour.

HIS HONOUR:  Yes, thank you.

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